The Roman Catholic Archdiocese of Atlanta v. Secretary of the U.S. Department of Health and Human Services

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12696

________________________

D.C. Docket No. 1:13-cv-00521-CG-C

ETERNAL WORD TELEVISION NETWORK, INC.,

Plaintiff - Appellant,

STATE OF ALABAMA,

Plaintiff,

versus

SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN

SERVICES,

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

SECRETARY OF THE U.S. DEPARTMENT OF LABOR,

U.S. DEPARTMENT OF LABOR,

SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY,

U.S. DEPARTMENT OF THE TREASURY,

Defendants - Appellees.

________________________

Appeals from the United States District Court

for the Southern District of Alabama

________________________

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________________________

Nos. 14-12890; 14-13239

________________________

D.C. Docket No. 1:12-cv-03489-WSD

THE ROMAN CATHOLIC ARCHDIOCESE

OF ATLANTA,

an association of churches and schools,

THE MOST REVEREND WILTON D. GREGORY,

and his successors, Archbishop of the Roman

Catholic Archdiocese of Atlanta,

CATHOLIC CHARITIES OF THE ARCHDIOCESE

OF ATLANTA, INC.,

a Georgia non-profit corporation,

THE ROMAN CATHOLIC DIOCESE OF SAVANNAH,

an ecclesiastical territory,

THE MOST REVEREND JOHN HARTMAYER,

and his successors, Bishop of the Roman

Catholic Diocese of Savannah, et al.,

Plaintiffs - Appellees,

versus

SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

U.S. DEPARTMENT OF LABOR,

U.S. DEPARTMENT OF TREASURY,

SECRETARY, U.S. DEPARTMENT OF LABOR,

SECRETARY, U.S. DEPARTMENT OF TREASURY,

Defendants - Appellants.

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________________________

Appeals from the United States District Court

for the Northern District of Georgia

________________________

(February 18, 2016)

Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge:

The plaintiffs in these consolidated appeals challenge the regulations

implementing what is known as the “contraceptive mandate” of the Affordable

Care Act (“ACA”)—the requirement that employers provide health insurance

coverage for preventive care (including contraception) to women. 1 Specifically,

the plaintiffs argue that the regulations’ accommodation for nonprofit

organizations with a religious objection to providing contraceptive coverage

violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et

seq. They claim that the accommodation substantially burdens their religious

exercise in violation of RFRA by forcing them to take actions that cause their

health plan administrators to provide contraceptive coverage and to maintain a

health plan that serves as a conduit for contraceptive coverage. We reject the

1

We consider in this opinion the following district court orders: Eternal World Television

Network, Inc. v. Burwell, 26 F. Supp. 3d 1228 (S.D. Ala. 2014); Roman Catholic Archdiocese of

Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 2441742 (N.D. Ga. May 30, 2014); and

Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL

1256373 (N.D. Ga. Mar. 26, 2014). The government filed separate appeals from the two orders

in Roman Catholic Archdiocese, which were consolidated before this Court.

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plaintiffs’ claims because we conclude that the regulations do not substantially

burden their religious exercise and, alternatively, because (1) the government has

compelling interests to justify the accommodation, and (2) the accommodation is

the least restrictive means of furthering those interests.

Eternal Word Television Network (“EWTN”), the plaintiff in the first

appeal, also raises several First Amendment challenges to the accommodation.

Because the accommodation is a neutral, generally applicable law that does not

discriminate based on religious denomination, we reject EWTN’s challenges under

the Establishment and Free Exercise Clauses. We also reject EWTN’s challenge

under the Free Speech Clause because, as discussed below, any speech restrictions

that may flow from the accommodation are justified by a compelling governmental

interest and are thus constitutional.

I. BACKGROUND

A. The Affordable Care Act and the Contraceptive Mandate

Enacted in 2010, the ACA requires group health insurance plans to provide a

minimum floor of coverage without imposing cost sharing (such as deductibles,

co-payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C.

§ 300gg-13(a). If an employer fails to provide such coverage in its group

employee health plan, it is subject to penalties in the form of a tax of $100 per day

per affected person. 26 U.S.C. § 4980D(b)(1). The Women’s Health Amendment

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to the ACA added to the minimum coverage requirements a mandate that group

health plans provide women with coverage for preventive care and screenings.

42 U.S.C. § 300gg-13(a)(4). The requirement was intended in part to “get[] rid of,

or minimiz[e], high copays and high deductibles that are often overwhelming

hurdles for women to access screening programs.” 155 Cong. Rec. S11987 (Nov.

30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources

and Services Administration (“HRSA”), an agency of the Department of Health

and Human Services (“HHS”), with promulgating comprehensive guidelines

determining which preventive services and screenings would be required.

42 U.S.C. § 300gg-13(a)(4). HHS commissioned the Institute of Medicine

(“IOM”) to assist with HRSA’s development of the guidelines.

The IOM released a full report in 2011 detailing its study of various

preventive services and its recommendations for coverage under the mandate. Inst.

of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011)

(“IOM Report”). The IOM Report discussed at length the positive public health

outcomes associated with reducing unintended pregnancies and giving women

more control over birth spacing. The United States has a much higher rate of

unintended pregnancies—49 percent of pregnancies in 2001—than other

developed countries. Id. at 102. Unintended pregnancies correlate with health

problems both for women who experience such pregnancies and for children born

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as a result of them. Id. at 103. And because women may not realize immediately

that they are pregnant, “their entry into prenatal care may be delayed[;] they may

not be motivated to discontinue behaviors that present risks for the developing

fetus; and they may experience depression, anxiety, or other conditions.” Id.

Unintended pregnancies also frequently end in abortion. Id. at 102. 2

The IOM Report also noted the health consequences of pregnancies

occurring too closely together in time. For infants, “[s]hort interpregnancy

intervals in particular have been associated with low birth weight, prematurity, and

small for gestational age births.” Id. at 103. For women, both pregnancy spacing

and the ability to avoid pregnancy may significantly affect their health because,

among other reasons, some “women with certain chronic medical conditions (e.g.,

diabetes and obesity) may need to postpone pregnancy until appropriate weight

loss or glycemic control has been achieved.” Id. Pregnancy is also contraindicated

for some women with serious medical conditions, for example, pulmonary

hypertension or Marfan syndrome. 3 Id. at 103-04. The IOM Report also found

2

A 2013 report from the Centers for Disease Control and Prevention estimated that 18

percent of all pregnancies in the United States ended in abortion and noted that “unintended

pregnancy precedes nearly all abortions.” Karen Pazol, et al., Centers for Disease Control &

Prevention, Abortion Surveillance—United States, 2010 (Nov. 29, 2013),

http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm. The IOM Report noted that in

2001, 42 percent of unintended pregnancies in the United States were terminated by abortion.

IOM Report at 102.

3

Marfan syndrome is a genetic disorder that affects the body’s connective tissue.

Pregnancy can be difficult for women with the condition because of the additional strain

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that “greater use of contraception within the population produces lower unintended

pregnancy and abortion rates nationally.” Id. at 105.

Pursuant to its statutory authority, HRSA released binding guidelines, based

on the IOM Report, that require coverage for “[a]ll Food and Drug Administration

approved contraceptive methods, sterilization procedures, and patient education

and counseling for all women with reproductive capacity.” U.S. Dep’t of Health &

Human Servs., Health Res. & Servs. Admin., Women’s Preventive Services

Guidelines (“HRSA guidelines”), http://www.hrsa.gov/womensguidelines (last

visited Feb. 12, 2016); see also 77 Fed. Reg. 8725, 8725-26 (Feb. 15, 2012)

(quoting the language in the HRSA guidelines regarding coverage). Implementing

regulations developed by the Department of Labor, the Department of the

Treasury, and HHS (collectively, the “Departments”) reiterate the contraceptive

mandate’s requirement that health plans cover all services listed in the HRSA

guidelines. 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R

§ 2590.715-2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv)

(HHS Regulation). 4

pregnancy places on the cardiovascular system. Nat’l Heart, Lung, & Blood Inst., What is

Marfan Syndrome? (Oct. 1, 2010), http://www.nhlbi.nih.gov/health/health-topics/topics/mar/.

4

The Departments have jointly developed regulations carrying out the ACA. To be

concise, whenever possible we cite only to the regulations issued by HHS, codified at 45 C.F.R.

pt. 147, and not to the corresponding identical regulations issued by the Departments of Labor

and the Treasury.

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Mindful of religious freedom and the importance of respect for “the unique

relationship between a house of worship and its employees in ministerial

positions,” the Departments promulgated interim regulations that gave HRSA

discretion to exempt from the contraceptive mandate certain group health plans

established or maintained by religious employers. See 76 Fed. Reg. 46621, 46623

(Aug. 3, 2011). The Departments defined “religious employer” by incorporating

the Internal Revenue Service’s definition of a church or integrated auxiliary from

26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011).

The definition also required a religious employer to have a religious purpose and to

both serve and employ primarily persons who share the religious tenets of the

organization. Id. Exercising the discretion the regulations provided, HRSA

amended its guidelines to exempt religious employers from the contraceptive

mandate. The guidelines, issued on August 1, 2011, required compliance

beginning on August 1, 2012. See id. § 147.130(b)(1).

The Departments finalized the implementing regulations in February 2012.

See 77 Fed. Reg. 8725. At the same time, the Departments established a temporary

safe harbor from the contraceptive mandate for nonprofit organizations with

religious objections to providing contraceptive coverage. See Dep’t of Health &

Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain

Employers, Health Plans & Group Health Insurance Issuers with Respect to the

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Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10,

2012). The safe harbor remained in effect for the 2012 plan year, ending on

August 1, 2013. See id. at 2.

The Departments intended to use the safe harbor period to “expeditiously

develop and propose changes to the final regulations implementing” the

contraceptive mandate. 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012). The changes

to the regulations needed to “meet two goals—accommodating non-exempt, non-

profit religious organizations’ religious objections to covering contraceptive

services and assuring that participants and beneficiaries covered under such

organizations’ plans receive contraceptive coverage without cost sharing.” Id. In

March 2012, the Departments began the rulemaking process and solicited

comments on potential regulations that could achieve these two goals. Id. at

16501.

At the conclusion of the rulemaking process in July 2013, the Departments

promulgated revised regulations that retained HRSA’s authority to exempt

religious employers. See 78 Fed. Reg. 39870 (July 2, 2013). The same day,

HRSA released revised guidelines that tracked the Departments’ changes to the

religious employer exemption. The final regulations simplified the definition of a

“religious employer,” making the term coextensive with the IRS’s statutory

definition and removing the additional qualifications regarding a religious

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employer’s mission, programs, and employees. 45 C.F.R. § 147.131(a) (2013); see

also 78 Fed. Reg. at 39873-74. Religious employers remained categorically

exempt from the contraceptive mandate out of “respect [for] the religious interests

of houses of worship and their integrated auxiliaries.” 78 Fed. Reg. at 39874. The

Departments noted that the exemption did not undermine their goal of making

contraceptive coverage available because religious employers and their integrated

auxiliaries “are more likely than other employers to employ people of the same

faith who share the same objection, and who would therefore be less likely than

other people to use contraceptive services even if such services were covered under

their plan.” Id.

The revised regulations, which took effect on Aug. 1, 2013, added an

accommodation for organizations that do not qualify as religious employers under

the exemption. See 45 C.F.R. § 147.131(b) (2013). So long as an organization is a

nonprofit entity holding itself out as a religious organization and has a religious

objection to providing contraceptive coverage (we refer to such entities as “eligible

organizations”), it may opt out of the contraceptive mandate. Id. 5

5

Under 45 C.F.R. § 147.131(b), an organization is eligible for the accommodation if:

(1) The organization opposes providing coverage for some or all of any

contraceptive items or services required to be covered under § 147.130(a)(1)(iv)

on account of religious objections.

(2) (i) The organization is organized and operates as a nonprofit entity and

holds itself out as a religious organization; or

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Eligible organizations can take advantage of the accommodation via one of

two procedures. The first procedure requires the organization to complete

Employee Benefits Security Administration Form 700 (“Form 700”). See EBSA

Form 700–Certification (Aug. 2014),

http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc.

6

To complete the two-page form, the eligible organization must provide its name

and the name, title, and contact information of the individual signing the form on

behalf of the organization. The person signing the form must certify that the

organization “has a religious objection to providing coverage for some or all of any

contraceptive services that would otherwise be required to be covered.” Id.

(ii) The organization is organized and operates as a closely held for-profit

entity, as defined in paragraph (b)(4) of this section, and the organization’s

highest governing body (such as its board of directors, board of trustees, or

owners, if managed directly by its owners) has adopted a resolution or similar

action, under the organization’s applicable rules of governance and consistent

with state law, establishing that it objects to covering some or all of the

contraceptive services on account of the owners’ sincerely held religious beliefs.

(3) The organization must self-certify in the form and manner specified by the

Secretary of Labor or provide notice to the Secretary of Health and Human

Services as described in paragraph (c) of this section. The organization must

make such self-certification or notice available for examination upon request by

the first day of the first plan year to which the accommodation in paragraph (c) of

this section applies. The self-certification or notice must be executed by a person

authorized to make the certification or notice on behalf of the organization, and

must be maintained in a manner consistent with the record retention requirements

under section 107 of ERISA.

6

Form 700 is included as the appendix to this opinion.

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The form’s recipient depends on the type of health plan the eligible

organization maintains. Employers can provide health benefits either through an

insured health plan or a self-insured health plan. 7 See Cong. Budget Office, Key

Issues in Analyzing Major Health Insurance Proposals 6 (2008). If the eligible

organization has an insured plan, it gives Form 700 to the insurance company that

provides its health plan (“plan provider”); if the organization has a self-insured

plan, it gives Form 700 to its third-party administrator (“TPA”). The plaintiffs in

both cases before us provide health benefits to their employees through self-

insured group health plans, and all employ TPAs to administer their plans.

Alternatively, an eligible organization may directly notify HHS of its

religious objection to complying with the contraceptive mandate. This more

recently developed method of taking advantage of the accommodation arose from

the United States Supreme Court’s order granting a preliminary injunction in

Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After the regulations

concerning the exemption and accommodation procedures were finalized, the

Supreme Court in Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2759-60

(2014), extended the accommodation for nonprofit religious organizations to

7

For insured health plans, the employer contracts with an insurance company that

administers the group plan and pays claims. For self-insured plans, the financial risk of

providing health insurance lies with the organization itself; the organization directly pays for the

plan participants’ and beneficiaries’ claims. Usually, organizations with self-insured plans hire a

third party to handle administrative tasks, such as developing provider networks and processing

claims.

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closely held for-profit corporations whose owners have religious objections to

complying with the contraceptive mandate. Three days after the Hobby Lobby

decision was issued, the Supreme Court in Wheaton College granted a request for a

preliminary injunction pending appellate review to a plaintiff challenging the

accommodation itself under RFRA, the same challenge the plaintiffs mount here.

Wheaton Coll., 134 S. Ct. at 2807. The Supreme Court’s order enjoined HHS from

enforcing the accommodation procedure against the college, so long as the college

“inform[ed] the Secretary of Health and Human Services in writing that it is a non-

profit organization that holds itself out as religious and has religious objections to

providing coverage for contraceptive services.” Id. The Supreme Court warned,

however, that the injunction order “should not be construed as an expression of the

Court’s views on the merits.” Id. 8

In response to the order in Wheaton College, the Departments issued interim

final regulations in August 2014 to allow an eligible organization to opt out by

sending a letter to HHS, instead of giving Form 700 to its plan provider or TPA.

79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014); see Ctr. for Medicare & Medicaid

Servs., Model Notice, https://www.cms.gov/CCIIO/Resources/Regulations-and-

8

The Seventh Circuit recently resolved Wheaton College’s appeal, affirming the district

court’s denial of the college’s request for a preliminary injunction. Wheaton Coll. v. Burwell,

791 F.3d 792 (7th Cir. 2015).

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Guidance/Downloads/Model-Notice-8-22-14.pdf (last visited Feb. 12, 2016). 9

There is no prescribed format for the letter, but it must include:

the name of the eligible organization and the basis on which it

qualifies for an accommodation; its objection based on its sincerely

held religious beliefs to coverage of some or all contraceptive

services, as applicable (including an identification of the subset of

contraceptive services to which coverage the eligible organization

objects, if applicable); the plan name and type . . . ; and the name and

contact information for any of the plan’s third party administrators

and health insurance issuers.

45 C.F.R. § 147.131(c)(1)(ii).

The regulations became final, without substantial changes, in a set of new

rules effective on September 14, 2015. 80 Fed. Reg. 41318 (July 14, 2015). Under

the current rules, if an eligible organization directly notifies HHS of its intent to

opt out of the contraceptive mandate, the government then alerts the organization’s

health plan provider or TPA that the organization has opted out and describes the

plan provider’s or TPA’s resulting obligations. See 26 C.F.R. § 54.9815-

2713A(b)(1)(ii)(B), (c)(1)(ii).

For insured plans, once an eligible organization avails itself of the

accommodation, the plan provider must (1) “[e]xpressly exclude contraceptive

9

The interim final regulations also removed a provision (known as the non-interference

provision) requiring that eligible organizations “‘must not, directly or indirectly[,] seek to

interfere with a third party administrator’s arrangements to provide or arrange for separate

payments for contraceptive services,’ and ‘must not, directly or indirectly, seek to influence a

third party administrator’s decision to make any such arrangements.’” 79 Fed. Reg. at 51095

(quoting 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii)).

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coverage from the group health insurance coverage” and (2) “[p]rovide separate

payments for any contraceptive services required to be covered” for the plan

participants and beneficiaries. 45 C.F.R. § 147.131(c)(2)(i).

For self-insured plans, the regulations provide that when an eligible

organization invokes the accommodation, its TPA is designated as the plan

administrator under the Employee Retirement Income Security Act (“ERISA”),

29 U.S.C. § 1002(16), with respect to contraceptive services. Under the

regulations, the TPA is designated as the plan administrator in one of two ways. If

the eligible organization provides a copy of Form 700 to its TPA, then the

regulations treat the form “as a designation of the [TPA] as the plan administrator”

for ERISA purposes. 29 C.F.R. § 2510.3-16(b). If the eligible organization

instead notifies HHS of its intent to opt out, then the Department of Labor notifies

the TPA that it shall be the plan administrator with respect to contraceptive

services for ERISA purposes. Id.

Upon receiving notification, the TPA has the option of terminating its

contractual relationship with the eligible organization. 10 See 26 C.F.R. § 54.9815-

10

If the TPA terminates the relationship, the organization must (1) contract with a new

TPA to administer its self-insured plan, (2) convert to an insured plan by contracting with a plan

provider, or (3) administer the plan itself. If the eligible organization contracts with a new TPA,

then it remains subject to the mandate and must provide contraceptive coverage, seek an

accommodation, or pay a penalty. Alternatively, the organization could restructure its plan and

contract with a plan provider that would assume the risk of providing health insurance (that is,

change from a self-insured to an insured plan). In this scenario, the organization would have to

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2713A(b)(2). If it remains as the TPA, then it must provide (or arrange for another

insurer to provide) contraceptive benefits to participants and beneficiaries of the

self-insured plan. Id.; 29 C.F.R. § 2510.3-16(c). 11

Significantly, plan providers and TPAs “may not impose any cost-sharing

requirements (such as a copayment, coinsurance, or a deductible), or impose any

premium, fee, or other charge, or any portion thereof, directly or indirectly, on the

eligible organization, the group health plan, or plan participants or beneficiaries.”

26 C.F.R. § 54.9815-2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(ii). 12 Plan

providers “must segregate premium revenue collected from the eligible

organization from the monies used to provide payments for contraceptive

comply with the mandate, seek an accommodation, or pay a penalty. Finally, the organization

could continue with its self-insured plan without a TPA, meaning the organization would assume

responsibility for administering claims. Although the Departments are unaware of the existence

of a single self-insured plan without a TPA, they have created a safe harbor that excuses such a

plan from complying with the contraceptive mandate so long as it annually notifies HHS that it

has no TPA and plan participants and beneficiaries that contraceptive coverage is not provided.

The Departments will provide this safe harbor while considering an additional accommodation.

78 Fed. Reg. at 39880-81.

11

Self-insured plans run by houses of worship and certain organizations controlled by or

associated with a house of worship, known as “church plans,” are not subject to the provisions of

ERISA unless they elect otherwise. See 26 U.S.C. §§ 410(d), 414(e). The government lacks

authority to compel the TPA of a church plan not subject to ERISA to provide contraceptive

coverage. See 29 U.S.C. § 1003(b)(2). Nonetheless, the TPA for a church plan may voluntarily

provide contraceptive services; the government incentivizes these TPAs to provide the coverage

by offering larger reimbursements. See 80 Fed. Reg. at 41323 n.22; 45 C.F.R. § 156.50(d).

12

The government reimburses plan providers and TPAs for providing contraception

benefits. Plan providers receive a downward adjustment to the user fees they must pay to the

federal government to sell plans on the federally-facilitated health exchanges. The process for

TPAs can be more complicated. If the TPA is not itself a participating insurer, then it must

contract for contraceptive coverage with a participating insurer, and the insurer then passes on

the reimbursement to the TPA. See 80 Fed. Reg. at 41328.

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services.” 45 C.F.R. § 147.131(c)(2)(ii). A plan provider or TPA also must notify

plan participants and beneficiaries (contemporaneously with the delivery of other

plan materials, if possible) “that the eligible organization does not administer or

fund contraceptive benefits,” but that the plan provider or TPA instead “provides

separate payments for contraceptive services.” 26 C.F.R. § 54.9815-2713A(d);

45 C.F.R. § 147.131(d).

B. The Parties and Procedural History

This opinion addresses two cases: one brought by EWTN and one brought

by two Catholic Dioceses and a group of related persons and entities. Below, we

briefly discuss the plaintiffs and the procedural history of each case in turn.

1. Eternal Word Television Network

Plaintiff-appellant EWTN is a non-profit worldwide Catholic media network

founded in 1981 by Mother Mary Angelica, a Catholic nun. EWTN, based in

Irondale, Alabama, has approximately 350 employees. The network consists of 11

television feeds and two radio stations that reach 230 million homes in 144

countries and territories. Its programming includes daily Mass, Catholic devotions,

coverage of Catholic Church events, documentaries, children’s programs,

educational series, and other television and radio shows that support EWTN’s

mission of “serv[ing] the orthodox belief and teaching of the Church as proclaimed

by the Supreme Pontiff and his predecessors.” Compl. at 5, No. 1:13-cv-00521-

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CG-C, Doc. 1. EWTN has a self-insured group health plan to provide health

insurance benefits to its employees. Blue Cross Blue Shield of Alabama serves as

the TPA for the plan.

EWTN, together with the State of Alabama, 13 filed a complaint challenging

the contraceptive mandate and accompanying regulations under RFRA, the First

Amendment, the Due Process Clause of the Fifth Amendment, and the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint

alleged that “EWTN cannot facilitate access to health care insurance . . . that

covers artificial contraception, sterilization, or abortion, or related education and

counseling, without violating its deeply held religious beliefs.” Compl. at 7, No.

1:13-cv-00521-CG-C, Doc. 1. To EWTN, this means that its religious beliefs

prevent it both from providing contraceptive coverage in its health plan and from

using the accommodation. As a result, EWTN alleged, the contraceptive mandate

“imposes government pressure and coercion on EWTN to change or violate its

religious beliefs” because if it does not provide coverage or use the

accommodation, it faces fines for non-compliance with the mandate. Id. at 27.

EWTN and Alabama moved for partial summary judgment on five of the 17

counts in the complaint, including: Count One, alleging a violation of RFRA

13

Alabama was a party throughout the district court proceedings, but the State did not

join EWTN in this appeal.

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based on the regulations’ burden on religious exercise; Count Two, alleging a

violation of the Free Exercise Clause based on the same burden; Count Three,

alleging a violation of the Free Exercise Clause based on intentional discrimination

among religious organizations; Count Five, alleging a violation of the

Establishment Clause based on the selective imposition of a burden on some

religious organizations; and Count Nine, alleging a violation of the Free Speech

Clause based on compelled speech. Alabama joined in EWTN’s motion and

additionally moved for summary judgment on Count Seventeen, which sought a

declaration that the contraceptive mandate does not preempt Alabama law.

The defendants-appellees—the Departments and their Secretaries—filed a

motion to dismiss the complaint or, in the alternative, for summary judgment on all

of the plaintiffs’ claims. The district court denied EWTN’s and Alabama’s

motions for summary judgment and granted the defendants’ motion for summary

judgment as to Counts One, Two, Five, and Nine. On a motion by the plaintiffs,

the district court entered a final judgment on those four counts pursuant to Federal

Rule of Civil Procedure 54(b) and stayed litigation of the remaining claims

pending appeal.

EWTN timely appealed. On EWTN’s motion, we issued an injunction

pending appeal, preventing the defendants from enforcing the mandate or the

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accommodation against EWTN. Eternal Word Television Network, Inc. v. Sec’y,

U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014).

2. The Diocesan Plaintiffs, CENGI, and Catholic Charities

A group of Catholic entities—the Roman Catholic Archdiocese of Atlanta,

the Archbishop of Atlanta, Christ the King Catholic School, Catholic Charities of

the Archdiocese of Atlanta (“Catholic Charities”), the Roman Catholic Diocese of

Savannah, and the Bishop of Savannah—filed a lawsuit against the Departments

and their Secretaries. Both the Archdiocese of Atlanta and the Diocese of

Savannah (collectively with the Bishop and Archbishop, “the Dioceses”) are

associations of Catholic parishes and organizations, including Catholic schools.

Catholic Charities is a nonprofit organization that provides social services,

including immigration counseling, mental health counseling, marriage counseling,

and pregnancy support services. The second amended complaint added as a

plaintiff Catholic Education of North Georgia (“CENGI”) and removed Christ the

King Catholic School. CENGI is a nonprofit organization that oversees five

Catholic schools in the Atlanta area.

The Atlanta Archdiocese operates a self-insured health plan, which covers

employees of the Archdiocese, Catholic Charities, and CENGI. The Savannah

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Diocese operates two self-insured health plans for its employees. Meritain Health

serves as the TPA for all three plans. 14

The second amended complaint alleged that the contraceptive mandate and

accompanying regulations violate RFRA, the First Amendment, the non-delegation

doctrine, 15 and the APA. The plaintiffs alleged that the regulations require them

“to provide, pay for, and/or facilitate insurance coverage for abortion-inducing

drugs, sterilization, and contraception, in violation of their religious beliefs.”

Second Am. Compl. at 6, No. 1:12-cv-03489-WSD, Doc. 56. They alleged that the

regulations further burden religious exercise “by driving a wedge between

religious organizations, like the Atlanta Archdiocese, and their equally religious

charitable arms, such as Plaintiffs Catholic Charities and CENGI.” Id. Because

the charitable arms do not qualify as “religious employers,” the Dioceses alleged

14

The parties disagree over whether these health plans qualify as “church plans” for

purposes of ERISA. We need not decide whether the plans at issue are church plans because

their ERISA status does not impact our conclusion that the accommodation does not

substantially burden religious exercise. If the plans are not church plans, then our analysis as to

EWTN’s self-insured plan applies, and the accommodation presents no burden on religious

exercise. See infra Part III.A.2.b. If the plans are church plans, then the government lacks

authority to enforce the contraceptive mandate against the plaintiffs’ TPAs, rendering the

plaintiffs’ assertion that their actions trigger such coverage even weaker. See, e.g., Little Sisters

of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1188 (10th Cir.) (“The lack of

enforcement authority makes any burden on plaintiffs with church plans even less substantial

than the burden on plaintiffs with self-insured plans that are subject to ERISA.”), cert. granted

sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015).

15

The non-delegation doctrine is the constitutional principle that prevents Congress from

delegating its legislative authority to another body with “unfettered discretion to make whatever

laws” the body sees fit. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38

(1935).

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they must expel the charities’ employees from their health plans if the Dioceses

wish to take advantage of the religious exemption. 16

The Departments filed a motion to dismiss the second amended complaint

or, alternatively, for summary judgment on all counts. The plaintiffs cross-moved

for summary judgment as to seven of their eight counts, which alleged that the

mandate and accompanying regulations: burden religious exercise in violation of

RFRA (Count One); violate the Free Exercise Clause, based on the same burden

(Count Two); compel speech in violation of the Free Speech Clause (Count Three);

prohibit speech in violation of the Free Speech Clause (Count Four); favor certain

religious groups and entangle the government in religion in violation of the

Establishment Clause (Count Five); interfere with internal church governance in

violation of both the Free Exercise and Establishment Clauses (Count Six); and

involve an impermissible delegation of unchecked legislative authority to the

Departments (Count Seven).

The district court granted summary judgment to Catholic Charities and

CENGI on their RFRA claims, holding that the contraceptive mandate and

accommodation substantially burden the organizations’ religious exercise and are

not the least restrictive means to accomplish a compelling governmental interest.

16

We note that there is no dispute that EWTN, CENGI, and Catholic Charities qualify for

the accommodation and not for the religious employer exemption.

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The court enjoined the Departments from enforcing the mandate or the

accommodation against Catholic Charities and CENGI. In addition, the court

granted the plaintiffs’ motion for summary judgment on their claim that the non-

interference provision created a content-based speech restriction in violation of the

First Amendment.

As to the Dioceses’ RFRA claim, the court granted summary judgment to

the Departments. The Dioceses had argued first that they might at some point have

to pay more in premiums to help cover their plan providers’ cost of contraceptive

coverage, in violation of their religious beliefs, and second that the distinction

between religious employers and organizations eligible for the accommodation

would force the Dioceses to remove unaffiliated Catholic schools from their

insurance plans. Rejecting both arguments, the district court ruled that the first

argument was merely speculative (and the outcome on which the Dioceses

speculated would, in any event, be prohibited by law) and the second argument

failed to assert a legitimate religious exercise. The district court granted the

Departments’ summary judgment motion as to all of the plaintiffs’ remaining

claims based on the First Amendment, the non-delegation doctrine, and the APA.

Despite the split judgment, only the Departments appealed the district

court’s decision. Because revisions to the regulations have rendered the plaintiffs’

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compelled speech claim based on the non-interference provision moot, 17 the appeal

in this case concerns only the district court’s grant of summary judgment to

Catholic Charities and CENGI on their RFRA claim.

II. STANDARD OF REVIEW

“This court reviews the district court’s disposition of cross-motions for

summary judgment de novo, applying the same legal standards used by the district

court, viewing the evidence and all factual inferences therefrom in the light most

favorable to the non-movant, and resolving all reasonable doubts about the facts in

favor of the non-moving party.” Am. Bankers Ins. Group v. United States, 408

F.3d 1328 (11th Cir. 2005). Summary judgment is proper if the movant can show

“that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where the material facts

are undisputed and all that remains are questions of law, summary judgment may

be granted. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir.

2011).

17

As noted above, in 2014 the Departments removed the regulations’ requirement that

organizations “must not, directly or indirectly, seek to influence the third party administrator’s

decision to” provide contraceptive coverage to the objecting organization’s health plan

participants and beneficiaries. 26 C.F.R. § 54.9815-2713A(b)(1)(iii) (2013); see 79 Fed. Reg. at

51095; supra note 9.

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III. DISCUSSION

A. RFRA Claims

1. Legal Background

a. RFRA

RFRA provides that the federal government “shall not substantially burden a

person’s exercise of religion” unless it demonstrates that the burden “is in

furtherance of a compelling governmental interest” and “is the least restrictive

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-

1(a)-(b). Congress passed RFRA in 1993 in response to the Supreme Court’s

decision in Employment Division, Department of Human Resources of Oregon v.

Smith, 494 U.S. 872 (1990), which held that “a law that is neutral and of general

applicability need not be justified by a compelling governmental interest even if

the law has the incidental effect of burdening a particular religious practice.”

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)

(characterizing Smith). In Smith, the Supreme Court reasoned that “[t]o make an

individual’s obligation to obey [a neutral and generally applicable] law contingent

upon the law’s coincidence with his religious beliefs, except where the State’s

interest is ‘compelling[,]’ . . . contradicts both constitutional tradition and common

sense.” Smith, 494 U.S. at 885 (internal quotation marks and citation omitted).

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Congress stated that the purpose of RFRA was “to restore the compelling

interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin

v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb(b)(1). Congress declared the

strict scrutiny standard provided “a workable test for striking sensible balances

between religious liberty and competing prior governmental interests.” Id.

§ 2000bb(a)(5). Indeed, RFRA “provide[s] even broader protection for religious

liberty than was available under” Sherbert or Yoder because the government must

also show that it used the least restrictive means to achieve its compelling interest.

Hobby Lobby, 134 S. Ct. at 2761 n.3.

b. Hobby Lobby

In Hobby Lobby, the Supreme Court held that enforcing the contraceptive

mandate without an accommodation against closely held for-profit corporations

that objected on religious grounds to providing contraceptive coverage violated

RFRA. The corporations and their owners challenged the mandate as substantially

burdening their religious exercise. Id. at 2764-66. The owners of the corporations

sincerely believed that life begins at conception and that it is a sin to facilitate

access to contraceptive drugs or devices that could destroy an embryo. Id. It was

undisputed that the mandate required the plaintiffs to provide health insurance that

covered methods of contraception that could result in the destruction of an embryo.

Id. at 2775. The plaintiffs asserted that the mandate left them with only two

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options: (1) provide coverage for contraception in violation of their religious

beliefs or (2) pay significant penalties. Given these choices, the Supreme Court

held that the mandate “impose[d] a substantial burden.” Id. at 2779.

The government argued there was no substantial burden because the

connection between what the mandate required the plaintiffs to do (provide health

insurance that covered contraception) and the end that they found morally wrong

(the destruction of an embryo) was too attenuated. Id. at 2777. The premise of the

government’s attenuation argument was that “providing the coverage would not

itself result in the destruction of an embryo; that would occur only if an employee

chose to take advantage of the coverage and to use one of the four [contraceptive]

methods at issue.” Id. In other words, the government asserted that the plaintiffs’

belief—that providing insurance coverage for contraception facilitated the

destruction of embryos—was unreasonable. The Supreme Court rejected this

argument, which would have required the Court to determine the “circumstances

under which it is wrong for a person to perform an act that is innocent in itself but

that has the effect of enabling or facilitating the commission of an immoral act by

another.” Id. at 2778. The Supreme Court cautioned that “federal courts have no

business addressing” such questions of religion and moral philosophy. Id. Instead,

the Supreme Court deferred to the plaintiffs’ religious belief that the coverage “is

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connected to the destruction of embryo in a way that is sufficient to make it

immoral for them to provide the coverage.” Id.

The Court then considered whether the mandate survived strict scrutiny.

The majority assumed that the mandate furthered a compelling governmental

interest 18 but held that it was not the least restrictive means of doing so. Id. at

2779-80. The Court pointed to the accommodation, which at the time applied only

to nonprofit organizations with religious objections, as a less restrictive alternative.

18

The majority opinion assumed without deciding that the government has a compelling

interest. In separate opinions, five members of the Court appeared to go further, suggesting that

a majority of the Court would agree that there is, in fact, a compelling interest.

The four dissenting justices concluded that the government carried its burden in showing

that the mandate “furthers compelling interests in public health and women’s well being.”

Hobby Lobby, 134 S. Ct. at 2799 (Ginsburg, J., dissenting). Justice Kennedy, who joined the

majority, offered a separate concurrence in which he emphasized the importance of the

majority’s assumption that there is a compelling interest without explicitly stating that he agreed

with that premise: “[it is] important to confirm that a premise of the Court’s opinion is its

assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in

the health of female employees.” Id. at 2786 (Kennedy, J., concurring). He also reiterated the

government’s position that the mandate “provid[ed] insurance coverage that is necessary to

protect the health of female employees, coverage that is significantly more costly than for a male

employee.” Id. at 2785-86.

Justice Ginsburg in her dissent and other courts have treated Justice Kennedy’s

concurrence as recognizing that the government has a compelling interest. See id. at 2800 n.23

(Ginsburg, J., dissenting) (writing that Justice Kennedy “recognize[d], without reservation,” the

existence of a compelling interest); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 624 (7th Cir.

2015) (Hamilton, J., concurring) (“Justice Kennedy’s concurring opinion made clear that he

viewed the governmental interests as compelling.”); Priests for Life v. U.S. Dep’t of Health &

Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (explaining why Justice Kennedy’s

concurrence was “more affirmative” than the majority opinion in recognizing a compelling

interest), cert. granted sub nom., Roman Catholic Archbishop of Wash. v. Burwell, 136 S. Ct.

444 (2015), and cert. granted, 136 S. Ct. 446 (2015). We are inclined to agree that Justice

Kennedy’s concurring opinion can be read as recognizing a compelling interest. Nonetheless,

even if Justice Kennedy merely assumed (but did not decide) there is a compelling interest, such

that a majority of the Supreme Court has not reached that conclusion, we conclude that there is a

compelling interest here. See infra Part III.B.2.c.(i).

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The Court explained that after an organization opts out, the plan provider (for

insured plans) or TPA (for self-insured plans) must exclude contraceptive coverage

from the group health plan and provide separate payments for contraceptive

coverage without imposing cost sharing requirements on the organization, plan, or

plan participants or beneficiaries. Id. at 2782. Although the Court declined to

answer whether the accommodation complied with RFRA, it lauded the

accommodation as “seek[ing] to respect the religious liberty of religious nonprofit

corporations while ensuring that the employees of these entities have precisely the

same access to all FDA-approved contraceptives as employees of companies

whose owners have no religious objections to providing such coverage.” Id. at

2759. The Court further recognized that “[t]he effect of the HHS-created

accommodation on the women employed by Hobby Lobby and the other

companies involved in these cases would be precisely zero.” 19 Id. at 2760.

c. Wheaton College

After Hobby Lobby, the Court considered the accommodation itself in the

context of an injunction sought under RFRA in Wheaton College. The Court

enjoined the government from enforcing the mandate but required the plaintiff to

19

Justice Kennedy praised how the accommodation reconciled the competing priorities

of ensuring that “no person may be restricted or demeaned by government in exercising his or

her religion” and that the same exercise does not “unduly restrict other persons . . . in protecting

their own interests, interests the law deems compelling.” Hobby Lobby, 134 S. Ct. at 2786-87

(Kennedy, J., concurring).

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inform HHS in writing that it had religious objections to providing coverage for

contraceptive services. 134 S. Ct. at 2807. The Court explained that the

government could “rely[] on this notice . . . to facilitate the provision of full

contraceptive coverage.” Id. The practical effect of the Wheaton College decision

was twofold: the plaintiff received an accommodation, and HHS could rely on the

notification to provide contraceptive coverage to the participants and beneficiaries

of the plaintiff’s plan.

d. Other RFRA Challenges to the Accommodation

After Hobby Lobby and Wheaton College, federal courts around the country

considered RFRA challenges to the accommodation. Applying these two Supreme

Court decisions, seven of the eight circuits to review these cases held that the

accommodation does not violate RFRA. See Mich. Catholic Conf. & Catholic

Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015); Catholic Health Care Sys.

v. Burwell, 796 F.3d 207 (2d Cir. 2015); Little Sisters of the Poor Home for the

Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted sub nom., S. Nazarene

Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015); E. Tex.

Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, 136 S. Ct. 444

(2015); Univ. of Notre Dame v. Burwell (“Notre Dame II”), 786 F.3d 606 (7th Cir.

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2015);20 Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422

(3d Cir.), cert. granted sub nom., Zubik v. Burwell, 136 S. Ct. 444, and cert.

granted, 136 S. Ct. 445 (2015); Priests for Life v. U.S. Dep’t of Health & Human

Servs. (“Priests for Life I”), 772 F.3d 229 (D.C. Cir. 2014), reh’g en banc denied,

(“Priests for Life II”), 808 F.3d 1 (D.C. Cir. 2015), cert. granted sub nom., Roman

Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 444 (2015), and cert. granted,

136 S. Ct. 446 (2015). These circuits concluded that the accommodation does not

substantially burden religious exercise. 21 The Eighth Circuit disagreed, holding

that the accommodation substantially burdens religious exercise and cannot survive

strict scrutiny. Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs.,

801 F.3d 927 (8th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3350 (U.S. Dec.

15, 2015) (No. 15-775). Recently, the Supreme Court granted certiorari in several

of these cases.

The seven circuits that upheld the accommodation recognized that the RFRA

claim in Hobby Lobby was fundamentally different from challenges to the

20

Before Hobby Lobby was decided, the Seventh Circuit affirmed the denial of a

preliminary injunction to enjoin the enforcement of the mandate and accommodation in

University of Notre Dame v. Sebelius (“Notre Dame I”), 743 F.3d 547 (7th Cir. 2014).

Subsequently, the Supreme Court granted certiorari, vacated the Seventh Circuit’s judgment in

Notre Dame I, and remanded for consideration in light of Hobby Lobby. Univ. of Notre Dame v.

Burwell, 135 S. Ct. 1528 (2015). After considering Hobby Lobby, the Seventh Circuit issued

Notre Dame II again affirming the denial of a preliminary injunction.

21

Two circuits have held, in the alternative, that even assuming the accommodation

imposes a substantial burden, it survives strict scrutiny under RFRA. See Notre Dame II,

786 F.3d at 616-17; Priests for Life I, 772 F.3d at 256-57.

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accommodation itself. In Hobby Lobby, the plaintiffs challenged the mandate—

that is, the requirement that they provide contraceptive coverage—when their only

options were to provide the coverage or pay significant penalties. But in the

accommodation cases, the plaintiffs have challenged the regulatory scheme that

allows them to opt out of the mandate without penalty. Put another way, the

plaintiffs in the accommodation cases “do not challenge the general obligation

under the ACA to provide contraceptive coverage. They instead challenge the

process they must follow to get out of complying with that obligation.” Little

Sisters of the Poor, 794 F.3d at 1160. Because they assert that “the exemption

process itself imposes a substantial burden on their religious faiths,” their

challenges are somewhat “paradoxical and virtually unprecedented.” Priests for

Life I, 772 F.3d at 246 (internal quotation marks omitted).

The circuits upholding the accommodation recognized that the question of

whether there is a substantial burden involves an objective inquiry. After

interpreting the ACA and its regulations, they held that the act of opting out does

not trigger contraceptive coverage. See, e.g., Notre Dame II, 786 F.3d at 614

(explaining that “[i]t is federal law, rather than the religious organization’s signing

and mailing the form, that requires . . . third-party administrators of self-insured

health plans[] to cover contraceptive services”). Although the eligible

organizations asserted that the act of opting out makes them complicit in providing

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coverage, these courts explained that this objection could not constitute a

substantial burden because individuals “have no RFRA right to be free from the

unease, or even anguish, of knowing that third parties are legally privileged or

obligated to act in ways their religion abhors.” Priests for Life I, 772 F.3d at 246.

In Sharpe Holdings, the Eighth Circuit reached the opposite conclusion,

holding that the accommodation substantially burdened religious exercise, and

enjoined the government from enforcing the accommodation. Relying on Hobby

Lobby, the Eighth Circuit held that it was bound to accept the plaintiffs’ “assertion

that self-certification under the accommodation process—using either Form 700 or

HHS Notice—would violate their sincerely held religious beliefs.”22 Sharpe

Holdings, 801 F.3d at 941. Because the plaintiffs faced a substantial penalty if

they failed to seek an accommodation or provide contraceptive coverage, the

Eighth Circuit concluded there was a substantial burden. Id. at 942.

The Eighth Circuit then applied strict scrutiny. The court assumed that the

government had a compelling interest but held that the government had failed to

carry its burden to show that it lacked other means to achieve its interest without

imposing a substantial burden on religion. Id. at 943. The Eighth Circuit

22

Although the Eighth Circuit deferred to the plaintiffs’ understanding of how the

accommodation functioned, it agreed that the act of opting out triggered coverage. See Sharpe

Holdings, 801 F.3d at 942 (TPAs have no “wholly independent obligation” to provide

contraceptive coverage).

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concluded that less restrictive alternatives included the government: (1) requiring

less information from eligible organizations seeking an accommodation; (2)

assuming the cost of providing contraceptives through subsidies, reimbursements,

tax credits, or tax deductions to employees; (3) paying for distribution of

contraceptives at community health centers, public clinics, and hospitals; or (4)

making contraceptive coverage available through the healthcare exchanges. Id. at

944-45. Given these alternatives, the Eighth Circuit concluded that the

accommodation failed to survive strict scrutiny.

2. RFRA Analysis

With this legal landscape in mind, we now consider the plaintiffs’ RFRA

challenge. We hold that their challenge fails because (1) the accommodation does

not substantially burden their religious exercise, and (2) in the alternative, even if

there is a substantial burden, the accommodation survives strict scrutiny.

a. The Plaintiffs Allege a Sincere Religious Belief.

A threshold question we must ask is whether the plaintiffs’ religious beliefs

on which their RFRA claims are based are sincere. See Hobby Lobby, 134 S. Ct. at

2774 n.28 (“To qualify for RFRA’s protection, an asserted belief must be

‘sincere’. . . .”). It is well established that we defer to a plaintiff’s statement of its

own belief, so long as the plaintiff actually holds that belief. See id. at 2779 (“[I]t

is not for [courts] to say that [the plaintiffs’] religious beliefs are mistaken or

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insubstantial.”); Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir.) (“[W]e look

only to see whether the claimant . . . actually holds the beliefs he claims to hold.”

(internal quotation marks omitted)), cert. denied sub nom., Davila v. Hayes, 136 S.

Ct. 78 (2015).

Each plaintiff states that its religious beliefs prevent it from paying for,

providing, or facilitating the distribution of contraceptives. Each plaintiff also

asserts that it cannot be complicit in the provision of contraception. The

government does not contest the sincerity of these religious beliefs, nor is there any

indication whatsoever in the record that the stated beliefs are insincere. We thus

conclude that the plaintiffs’ religious beliefs at issue are sincere.

b. The Accommodation Does Not Substantially Burden the

Plaintiffs’ Religious Exercise.

We now consider whether, accepting the plaintiffs’ sincere religious beliefs,

the accommodation substantially burdens their religious exercise. The plaintiffs

assert that the act of notifying HHS or their TPAs of their religious objection will

either trigger contraceptive coverage or make them complicit in a system that

provides such coverage. Due to the significance they attach to opting out, the

plaintiffs contend that the accommodation itself imposes a substantial burden

because it puts them to the choice of violating their sincerely held religious beliefs

or paying a substantial penalty. We accept the plaintiffs’ sincere belief that

triggering coverage or being complicit in coverage violates their religious beliefs

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and that the accommodation puts them to a choice between honoring their religious

beliefs and facing significant penalties. We nonetheless conclude that the

accommodation imposes no substantial burden.

(i) The Substantial Burden Analysis Involves an

Objective Inquiry.

“[A] ‘substantial burden’ must place more than an inconvenience on

religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,

1227 (11th Cir. 2004). 23 A law is substantially burdensome when it places

“significant pressure” on an adherent to act contrary to her religious beliefs,

meaning that it “directly coerces the religious adherent to conform . . . her

behavior.” Id. Thus, the government imposes a substantial burden when it places

“pressure that tends to force adherents to forego religious precepts.” Id.

This inquiry involves both subjective and objective dimensions. Hobby

Lobby made clear that there is a subjective aspect to this inquiry: courts must

accept a religious adherent’s assertion that his religious beliefs require him to take

or abstain from taking a specified action. See 134 S. Ct. at 2779. But the

23

Midrash concerned the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), which Congress enacted after the Supreme Court struck down RFRA as applied to

the states in City of Boerne v. Flores, 521 U.S. 507 (1997). RLUIPA imposes the same

requirement as RFRA—that the government refrain from substantially burdening religious

exercise unless the burden is the least restrictive means of achieving a compelling government

interest—on programs and activities that receive federal funding. 42 U.S.C. § 2000cc-1. We

apply the same substantial burden analysis under both RLUIPA and RFRA. See generally

Davila, 777 F.3d at 1204; Midrash, 366 F.3d at 1237.

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substantial burden analysis does not end there. We agree with our seven sister

circuits that the question of substantial burden also presents “a question of law for

courts to decide.” Priests for Life I, 772 F.3d at 247.

The objective inquiry requires courts to consider whether the government

actually “puts” the religious adherent to the “choice” of incurring a “serious”

penalty or “engag[ing] in conduct that seriously violates [his] religious beliefs.”

Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (second alteration in original and

internal quotation marks omitted). Put another way, courts must determine what

the challenged law actually requires of the plaintiff. For example, in Holt, a

Muslim inmate asserted that prison grooming policy substantially burdened his

religious exercise because it prohibited him from growing a beard, which his

religion required. The Supreme Court explained that because the “grooming

policy requires petitioner to shave his beard,” the policy “put[]” him to the choice

of violating his religious beliefs or facing serious disciplinary action. Id. In Holt,

as in many RFRA cases, this inquiry was straightforward because there was no

dispute about what the government’s policy objectively required of the religious

adherent. But when there is a dispute about what a law or governmental policy

objectively requires, it is for the courts to construe the law or policy.

The plaintiffs here contend that under Hobby Lobby no such objective

inquiry is required. In their view, a religious adherent’s mere assertion that she is

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being compelled to violate her sincerely held religious belief means that the

government has put her to such a choice, regardless of what the law objectively

requires. 24 We disagree. In Hobby Lobby, the plaintiffs challenged the

contraceptive mandate. It was undisputed that the mandate gave the plaintiffs just

two options: provide contraceptive coverage or pay a substantial penalty.

Although the Supreme Court engaged in no objective analysis about what the

mandate required, such analysis was unnecessary because the parties agreed that

the government, through the mandate, put the plaintiffs to the choice of providing

contraceptive coverage or paying a hefty fine. See Hobby Lobby, 134 S. Ct. at

2777-79; see also Priests for Life II, 808 F.3d at 2 (Pillard, J.) (concurring in denial

of reh’g en banc) (“The parties in Hobby Lobby did not dispute what the law

required, nor its practical effects . . . .”).

Here, the parties agree that the plaintiffs have at least three options: provide

contraceptive coverage, pay a penalty, or use the accommodation to opt out of

providing contraceptive coverage. 25 But they disagree about whether opting out

24

The Eighth Circuit similarly interpreted Hobby Lobby as requiring courts to “accept

[the plaintiffs’] assertion that self-certification under the accommodation process . . . would

violate their sincerely held religious beliefs.” Sharpe Holdings, 801 F.3d at 941.

25

We agree with the dissent that the plaintiffs have a fourth option, as well: to terminate

their TPAs and take over the costs and responsibilities of running their self-insured plans. See

Dissent at 109-10. But, the Departments contend there is no evidence of the existence of any

self-insured plan without a TPA. See 78 Fed. Reg. at 39880 (“[T]he Departments continue to

believe that there are no self-insured group health plans in this circumstance.”). If an eligible

organization elected to become the first self-insured plan without a TPA, it would enjoy at least a

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puts the plaintiffs to the choice of violating their religious beliefs or paying a

substantial fine. The plaintiffs contend that because an eligible organization’s TPA

only becomes obligated to provide coverage when the organization opts out, by

opting out they will be triggering coverage. The government argues to the contrary

that plan participants and beneficiaries are entitled to contraceptive coverage under

the ACA regardless of any opt out. We conclude that it is for the courts to

determine objectively what the regulations require and whether the government

has, in fact, put plaintiffs to the choice of violating their religious beliefs by

seeking the accommodation or incurring a substantial penalty.

We reject a framework that takes away from courts the responsibility to

decide what action the government requires and leaves that answer entirely to the

religious adherent. Such a framework improperly substitutes religious belief for

legal analysis regarding the operation of federal law. Indeed, the plaintiffs have

identified nothing in RFRA or case law that allows a religious adherent to dictate

to the courts what the law requires. The plain language of RFRA simply does not

support reducing the role of federal courts to “rubber stamps” that automatically

temporary safe harbor so long as the plan notifies (1) HHS that it has no TPA and (2) plan

participants and beneficiaries that the plan provides no benefits for contraceptive services. Id.

We assume for purposes of this appeal that if the government forced an eligible

organization to have a self-insured plan without a TPA, it would be imposing a substantial

burden. Nonetheless, we conclude there is no substantial burden because eligible organizations

can instead select the accommodation.

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recognize a substantial burden whenever a religious adherent asserts there is one.

Catholic Health Care Sys., 796 F.3d at 218. If Congress had intended strict

scrutiny to be triggered in all circumstances by a religious adherent’s claim that

there is a burden, it would have said so. Instead, it required that the federal

government “substantially burden” the adherent’s religious exercise.

Our dissenting colleague concedes that the question of substantial burden

involves an objective inquiry but asserts that the inquiry should be limited to

whether the government has imposed a substantial penalty. See Dissent at 113-15.

This analysis would require courts to defer to a religious adherent’s sincere belief

that the government is forcing her to choose between her religious belief and

paying a substantial fine, even when the religious adherent is objectively wrong

about how the law operates and what action the government requires her to take.

The dissent’s view is flawed because any burden (even an objectively insubstantial

one) becomes a substantial burden if the penalty is heavy enough.

We acknowledge that in Hobby Lobby the Supreme Court cautioned courts

against dictating to religious adherents “the circumstances under which it is

immoral for a person to perform an act that is innocent in itself but that has the

effect of enabling or facilitating the commission of an immoral act by another.”

134 S. Ct. at 2778. In some cases, a court’s objective analysis interpreting a statute

or regulation may contradict a religious adherent’s sincerely held belief about what

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that law requires. But such questions about what a law means are not the type of

“difficult and important question of religion and moral philosophy” for which

courts must defer to religious adherents. Id.; see Notre Dame II, 786 F.3d at 623

(Hamilton, J., concurring) (explaining that the interpretation of the regulations that

give rise to the accommodation “is an issue not of moral philosophy but of federal

law”).

Deciding how the law functions is not the only objective part of the

substantial burden inquiry. The Supreme Court’s free exercise cases (prior to

Smith) distinguished between substantial burdens on religious exercise, which are

protected, and de minimis burdens, which are not. For example, a religious

adherent may not “require the Government to conduct its own internal affairs in

ways that comport” with the person’s religious beliefs, even if the government

action interferes with that person’s religious exercise. Bowen v. Roy, 476 U.S. 693,

699-700 (1986); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

451 (1988) (recognizing that government’s decision to log and build roads would

“have severe adverse effects” on practice of Native American religion but

concluding this burden was not “heavy enough” to trigger strict scrutiny under the

Free Exercise Clause).

In Bowen, Native American parents challenged federal statutes requiring

them to provide their daughter’s social security number to state welfare agencies as

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a condition of seeking benefits on the ground that it impinged upon their free

exercise of religion. They sought an accommodation to keep the government from

using her social security number in administering benefits, which they believed

would rob their daughter of her spirit. 476 U.S. at 695-96.

Even recognizing that the parents had a sincere belief that by using her

social security number the government would be stealing their daughter’s spirit,

the Supreme Court rejected their claim, holding that the government’s “use of a

Social Security number . . . does not itself in any degree impair [the parents’]

freedom to believe, express, and exerc[ise their] religion.’” Id. at 700 (internal

quotation marks omitted). The Court rejected the parents’ attempt to use the Free

Exercise Clause to “demand that the Government join in their chosen religious

practices.” Id. at 699-700. The Court explained that “[t]he Free Exercise Clause

affords an individual protection from certain forms of governmental compulsion,”

yet does not extend so far to “afford an individual a right to dictate the conduct of

the Government’s internal procedures.” Id. at 700. The Court acknowledged that

the parents’ “religious views may not accept” the line that the Court drew

“between individual and governmental conduct,” but it drew a line nonetheless.

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Id. at 701 n.6. Likewise, under RFRA courts must determine whether the burden

on a religious adherent is, in fact, substantial. 26

As we alluded to above, the plain language of RFRA supports our

conclusion that there is a distinction between a burden and a substantial burden.

RFRA requires strict scrutiny only when the government “substantially burden[s] a

person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). Congress chose to

modify “burden” with “substantial[],”27 and we must of course interpret RFRA to

give full effect to its every word. See TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (recognizing that statutes should be construed whenever possible so that

“no clause, sentence, or word shall be superfluous, void, or insignificant” (internal

quotation marks omitted)).

26

We reiterate that in Hobby Lobby the Supreme Court did not grapple with this aspect of

the substantial burden analysis. But it was plain that the action required of the plaintiffs in that

case—paying to provide health insurance that included contraceptive coverage—imposed a

substantial burden. Accordingly, the Court had no occasion to address the more difficult

question presented here, where the plaintiffs’ claims of substantial burden rest on their assertion

that seeking an accommodation results in another entity (the TPA) providing contraceptive

coverage and thus makes them complicit in a system that achieves an end to which they have a

religious objection. In other words, Hobby Lobby did not pose the issue whether courts must

defer to a religious adherent’s assertion that seeking an accommodation (opting out) itself

imposes a substantial burden.

27

Congress used “substantial burden” instead of “burden” in order “to clarify [that] the

compelling interest required by the Religious Freedom [Restoration] Act applies only where

there is a substantial burden placed on the individual free exercise of religion.” 139 Cong. Rec.

S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (emphasis added). Limiting RFRA’s

application to substantial burdens was intended to ensure that the government was not required

“to justify every action that has some effect on religious exercise.” Id.

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We recognize that the distinction between burden and substantial burden is

not implicated in every RFRA case. Nonetheless, there are cases brought under

RFRA in which the purported burden is too slight to trigger strict scrutiny. For

example, in Kaemmerling v. Lappin, an inmate challenged under RFRA the Bureau

of Prison’s collection and analysis of his DNA. 553 F.3d 669, 673-74 (D.C. Cir.

2008). He claimed that the government’s sampling, collection, and analysis of his

DNA violated his sincerely held religious beliefs about the proper use of DNA.

The D.C. Circuit concluded there was no substantial burden. Importantly, the

inmate had no religious objection to the collection of his bodily material; he

challenged only how the government would subsequently use that specimen to

extract his DNA information. Id. at 678-79. There was no question that the

Bureau of Prisons required the inmate to submit a bodily specimen that would be

used for an end to which he had a strong religious objection (that is, the collection

and analysis of his DNA). But the D.C. Circuit held there was no substantial

burden because the inmate “suggest[ed] no way in which these government acts

pressure[d] him to modify his own behavior in any way that would violate his

beliefs.” Id. at 679. Kaemmerling reinforces that a religious adherent cannot use

RFRA to stop the government or third parties from taking subsequent actions to

which he objects when the acts required of him impose a de minimis burden. 28

28

Our dissenting colleague worries that our framework creates a “Bizarro World” in

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(ii) No Substantial Burden Exists.

To determine whether the accommodation objectively puts plaintiffs to the

choice of violating their religious beliefs or paying a significant fine, we must

understand how the accommodation functions and what it requires of these

plaintiffs. The only act that the regulations require the plaintiffs to take is to seek

the accommodation—that is, filling out and sending Form 700 to their TPAs or

writing a letter to HHS letting it know of their objections. The plaintiffs do not

contend that notifying HHS or their TPAs itself constitutes a substantial burden

because of the time or effort involved. Rather, their objection is based on the

significance they attribute to this act. They contend that the act of opting out

triggers contraceptive coverage for plan participants and beneficiaries or makes

them complicit in a system that provides contraceptive coverage. We accept that

the plaintiffs truly believe that triggering contraceptive coverage or being complicit

in a system providing contraceptive coverage violates their religious beliefs. But

which courts determine whether the burden imposed by a law or regulation violates the

adherent’s beliefs. Dissent at 117-18. The dissent overstates our position. We are not saying

that courts may determine that when a prison requires a Muslim inmate to shave his beard or the

government forces a Seventh-Day Adventist to work on the Sabbath, the religious adherent’s

claim that the government is coercing him to forego his religious precepts is wrong. But when a

dispute exists about whether the challenged governmental policy actually requires an inmate to

shave his beard or a person to work on Saturday, it is for the courts to determine what the law

requires. See, e.g., Sherbert, 374 U.S. at 403-04 (Supreme Court performed its own analysis to

determine whether challenged policy compelled Seventh-Day Adventist to work on Saturdays).

Likewise, when a religious adherent challenges an accommodation scheme as imposing a

substantial burden on the religious adherent based on subsequent actions taken by the

government or third parties, it is for the courts to determine whether the burden is substantial.

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our objective inquiry leads us to conclude that the government has not put

plaintiffs to the choice of violating their religious beliefs or facing a significant

penalty. We hold there is no substantial burden.

Here’s why: the ACA and HRSA guidelines are what entitle plan

participants and beneficiaries to contraceptive coverage. The ACA provides that

the plaintiffs’ self-insured plans “shall, at a minimum provide coverage for and

shall not impose any cost sharing requirements for . . . with respect to women, such

additional preventative care and screenings . . . as provided for in” the HRSA

guidelines. 42 U.S.C. § 300gg-13(a)(4). The HRSA Guidelines, in turn, “require

coverage, without cost sharing, for ‘[a]ll . . . [FDA] approved contraceptive

methods, sterilization procedures, and patient education and counseling for all

women with reproductive capacity.’” 77 Fed. Reg. at 8725 (alterations in original)

(quoting HRSA guidelines).

The plaintiffs and the dissent take a different view of the statutory and

regulatory scheme, contending that an eligible organization’s act of opting out

triggers the TPA’s designation as plan administrator and, without it, plan

participants or beneficiaries would not receive contraceptive coverage. 29 Indeed,

29

Because the plaintiffs here have only self-insured plans, we consider only the

accommodation procedures that apply to self-insured health plans.

For an eligible organization with a plan insured by a third party, the accommodation

imposes no new coverage obligation. The eligible organization’s act of opting out simply makes

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the dissent asserts that opting out requires an eligible organization’s “affirmative

participation” because the act of opting out is the “linchpin on which the

contraceptive mandate rests.” Dissent at 125. We disagree.

The ACA and the HRSA guidelines—not the opt out—are, to borrow the

dissent’s term, the “linchpins” of the contraceptive mandate because they entitle

women who are plan participants and beneficiaries covered by group health

insurance plans to contraceptive coverage without cost sharing. In other words,

women are entitled to contraceptive coverage regardless of their employers’ action

(or lack of action) with respect to seeking an accommodation. Because a woman’s

entitlement to contraceptive benefits does not turn on whether her eligible

organization employer chooses to comply with the law (by providing contraceptive

coverage or seeking an accommodation) or pay a substantial penalty (in the form

of a tax) for noncompliance, we cannot say that the act of opting out imposes a

substantial burden. 30

the coverage the plan provider’s “sole responsibility rather than one shared with the group health

plan itself.” Little Sisters of the Poor, 794 F.3d at 1181.

30

The dissent complains that our reading renders the act of opting out “meaningless.”

Dissent at 128 (internal quotation marks omitted). The dissent misses our point. Although plan

participants and beneficiaries are entitled to contraceptive coverage under federal law regardless

of any opt out, notification of the opt out allows the government to identify the plan participants

and beneficiaries who will not receive contraceptive coverage from a self-insured eligible

organization because of that organization’s religious objection to the mandate. In other words,

the act of opting out aids the government in identifying these women and making sure that they

receive the contraceptive coverage to which they are legally entitled. Thus, the act of opting out

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We do not mean to imply that the act of opting out plays no causal role in

the ultimate provision of contraceptive coverage. We acknowledge that an eligible

organization’s act of notifying HHS or its TPA of its objection results in the TPA’s

designation as the plan administrator and gives rise to the TPA’s obligation to

provide contraceptive coverage. 31 See 29 C.F.R. § 2510.3-16(b). But we view an

eligible organization’s act of opting out as, at most, an incidental cause of plan

participants and beneficiaries receiving contraceptive coverage because these

women are entitled to contraceptive coverage under the ACA and HRSA

guidelines regardless of whether the eligible organization opts out. Accordingly,

even if the act of opting out in some way leads to women receiving the

contraceptive coverage to which they were entitled under federal law, the plaintiffs

have failed to establish that the act of opting out substantially burdens their

religious exercise. Importantly, the government does not force an eligible

organization to provide contraceptive coverage, pay costs related to contraceptive

coverage, notify plan participants and beneficiaries of the existence of such

coverage, or even include the availability of such coverage from a separate source

in information the plan provides to plan participants and beneficiaries. Instead, all

has significance in the regulatory scheme, but not because it creates a woman’s entitlement to

contraceptive coverage.

31

Indeed, the government has admitted that an eligible organization’s opt out results in a

TPA’s designation as plan administrator and the TPA providing plan participants and

beneficiaries contraceptive benefits.

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of these responsibilities fall upon the TPA. Rather, the only action required of the

eligible organization is opting out: literally, the organization’s notification of its

objection. Such an opt out requirement is “typical of religious objection

accommodations that shift responsibility to non-objecting entities only after an

objector declines to perform a task on religious grounds.” Little Sisters of the

Poor, 794 F.3d at 1183.

The plaintiffs’ challenge is in substance indistinguishable from an objection

to the government’s requiring another entity to provide coverage in their stead.

See Catholic Health Care Sys., 796 F.3d at 224 (characterizing an identical

challenge as seeking a “blanket religious veto over the government’s interactions

with others”). Put differently, the plaintiffs’ opposition to opting out is an

objection to their inability to keep the TPA with which they have contracted to

provide services in connection with healthcare coverage from complying with the

relevant regulations. The plaintiffs point to a but-for causal relationship between

their opting out and the conduct that they find religiously objectionable. But, as

the Supreme Court has explained, a religious adherent cannot claim a substantial

burden based on the subsequent conduct of another party. 32 See Bowen, 476 U.S.

32

The plaintiffs argue that under the accommodation they are facilitating access to

contraceptives because their ongoing contractual relationship with their TPA leads the TPA to

continue to provide contraceptive coverage to plan participants and beneficiaries. It is true that a

TPA remains as plan administrator for purposes of contraceptive coverage only so long as the

organization serves as the plan’s TPA. Nonetheless, the plaintiffs cannot show a substantial

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at 699-700 (“Just as the government may not insist that appellees engage in any set

form of religious observance, so appellees may not demand that the Government

join in their chosen religious practices by refraining from using a number to

identify their daughter.”). 33

We recognize that the plaintiffs sincerely abhor and object to the subsequent

acts taken by the government and their TPA, which ultimately result in the TPA

providing contraceptive coverage to their plan participants and beneficiaries. We

acknowledge that they “may not accept [the] distinction” that we draw here

between their conduct and the downstream, separate conduct of HHS and the TPAs

to provide coverage. Id. at 701 n.6. But we simply cannot say that RFRA affords

the plaintiffs the right to prevent women from obtaining contraceptive coverage to

which federal law entitles them based on the de minimis burden that the plaintiffs

face in notifying the government that they have a religious objection.

As the Seventh Circuit first articulated, an analogy to a conscientious

objector to the military draft illustrates why the accommodation does not impose a

burden because, as explained above, their challenge is an objection to the TPA’s subsequent

conduct.

33

The dissent dismisses Bowen as distinguishable because the plaintiffs here object only

to their own participation in the accommodation, not to any acts taken by the government. See

Dissent at 126-27 n.32. We are not persuaded. The dissent’s position ignores that the plaintiffs

object to opting out because it requires them to play a causal role (albeit, a small one) in a system

in which the government requires contraceptive coverage. Put another way, their religious

objection is, at its core, an objection to the government requiring the TPAs to provide coverage

upon their opting out.

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substantial burden. See Notre Dame I, 743 F.3d at 556. A religious conscientious

objector to the military draft may opt of military service based on his belief that

war is immoral. The objector sincerely believes that his act of opting out triggers

the drafting of another person in his place, and thus renders him complicit in the

very thing to which he objects. But we would reject the assertion that the

government’s subsequent act of drafting another person in his place—even though

the drafting was in some sense caused by the objector’s act of opting out—

transforms the act of lodging a conscientious objection into a substantial burden.

See id. Likewise, we reject the plaintiffs’ assertion that opting out imposes a

substantial burden because the government requires a third party to provide

contraceptive coverage after an eligible organization opts out.

Accordingly, we conclude that through the accommodation the government

has imposed no substantial burden on the plaintiffs. We thus hold that the

accommodation does not violate RFRA.

c. The Accommodation Survives Strict Scrutiny.

Even assuming that the accommodation imposes a substantial burden on

plaintiffs’ religious exercise, RFRA allows the government to impose such a

burden when it demonstrates that the burden “is in furtherance of a compelling

governmental interest” and “is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Because the

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government has carried its burden of showing that the accommodation is the least

restrictive means of furthering its compelling interests, we hold in the alternative

that the accommodation survives strict scrutiny under RFRA.

(i) Compelling Interests Justify the Accommodation.

In applying RFRA’s strict scrutiny test, we must first determine whether the

accommodation is “in furtherance of a compelling governmental interest.” Id.

Because the mandate and accommodation require the provision of cost-free

contraceptive coverage with little to no administrative burden on women, these

regulations further compelling government interests in avoiding the adverse public

health consequences of unintended pregnancies and in assuring women the equal

benefit of preventative care by requiring coverage for their distinctive health

needs. 34 See Priests for Life I, 772 F.3d at 258-59.

34

As we explained above, the majority in Hobby Lobby assumed without deciding that

there was a compelling governmental interest. There is, however, an argument that five justices

concluded there was a compelling interest. See supra note 18. But even if Justice Kennedy’s

concurring opinion in Hobby Lobby did not recognize a compelling governmental interest, we

would hold that the compelling interest test is satisfied here.

We acknowledge that the majority opinion in Hobby Lobby criticized the government’s

purported interests in “promoting public health and gender equality” as “broadly framed.” 134

S. Ct. at 2779 (internal quotation marks omitted). But we agree with the D.C. Circuit that the

government has now provided a more focused analysis “by explaining how those larger interests

inform and are specifically implicated in its decision to support women’s unhindered access to

contraceptive coverage.” Priests for Life I, 772 F.3d at 259.

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(a) The Government’s Interests in Reducing the

Rate of Unintended Pregnancies Are

Compelling.

We begin our analysis with the facts: unintended or poorly spaced

pregnancies have a host of negative impacts on women and children. See supra

Part I.A. Women who experience unintended pregnancies are often unaware of

their condition in the early stages of their pregnancy, which leads them to delay

prenatal care and cessation of behaviors such as smoking or alcohol consumption.

78 Fed. Reg. at 39872. Babies born as a result of unintended pregnancies are at a

greater risk of premature birth and low birth weight. Id. Short interpregnancy

intervals also result in a greater risk of prematurity and low birth weight. Id.

Contraceptive use can alleviate these public health problems. 35 “[G]reater use of

contraception within the population produces lower unintended pregnancy and

abortion rates nationally.” IOM Report at 105.

During debate over the ACA, Congress was informed that “[i]n America

today, too many women are delaying or skipping preventive care because of the

costs of copays and limited access.” 155 Cong. Rec. S12027 (Dec. 1, 2009)

(statement of Sen. Gillibrand). The IOM Report also found that “cost-sharing

35

Many contraceptives also carry significant positive health side effects. “[T]he non-

contraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne

or hirsutism, and pelvic pain. Long-term use of oral contraceptives has been shown to reduce a

woman’s risk of endometrial cancer, as well as protect against pelvic inflammatory disease and

some benign breast diseases.” IOM Report at 107 (internal citations omitted).

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requirements, such as deductibles and copayments, can pose barriers to care and

result in reduced use of preventive and primary care services, particularly for low-

income populations.” IOM Report at 109. The Women’s Health Amendment,

which added to the ACA the requirement that group and individual health plans

provide women with coverage for preventative care and screenings, aimed to

increase women’s use of preventive care by removing administrative and financial

barriers. See 155 Cong. Rec. S12027 (statement of Sen. Shaheen) (“Too often,

women forgo their health care needs because they are not affordable. We know

cost plays a greater role in preventing women from accessing health care than it

does men. In 2007, more than half of all women reported problems accessing

needed health care because of costs.”); see also Priests for Life I, 772 F.3d at 260

(explaining that Congress and the Executive branch determined with the ACA and

its regulations that “serving the government’s compelling public health interests

depends on overcoming the human behavioral tendencies of denial and delay

documented in the legislative and regulatory record”).

Moreover, the Women’s Health Amendment, which added the contraceptive

mandate to the ACA’s minimum coverage requirements, specifically addressed the

need to provide preventive care to women to rectify past gender discrimination in

health insurance. As the Departments noted, “the statute acknowledges that both

existing health coverage and existing preventive services recommendations often

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did not adequately serve the unique health needs of women. This disparity placed

women in the workforce at a disadvantage compared to their male coworkers.” 36

78 Fed. Reg. at 39873; see also 155 Cong. Rec. S12027 (statement of Sen.

Gillibrand) (“The prevention section of the bill before us must be amended so

coverage of preventive services takes into account the unique health care needs of

women throughout their lifespan.”). Indeed, before the ACA, “women of

childbearing age spent 68 percent more on out-of-pocket health care costs than

men.” 78 Fed. Reg. at 39887. The Departments explained that this

“disproportionate” financial burden “prevented women from achieving health

outcomes on an equal basis with men.” Id. The Departments intended the

contraceptive coverage requirement to “help[] to equalize the provision of

preventative health care services to women and, as a result, help[] women

contribute to society to the same degree as men.” Id. As the Departments

explained, “[r]esearch shows that access to contraception improves the social and

economic status of women.” Id. at 39873; see generally Claudia Goldin &

Lawrence F. Katz, The Power of the Pill: Oral Contraceptives & Women’s Career

& Marriage Decisions, 110 J. of Pol. Econ. 731 (2002).

36

See also 155 Cong. Rec. S11987 (statement of Sen. Mikulski) (“Women are often

faced with the punitive practices of insurance companies. No. 1 is gender discrimination.

Women often pay more and get less. For many insurance companies, simply being a woman is a

preexisting condition. . . . We pay more because of our gender, anywhere from 2 percent to over

100 percent.”).

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Based on this evidence, we conclude that the government’s interests in the

public health of women and children, as well as in assuring women equal

preventative care, are compelling.

(b) The Mandate and Accommodation Further

These Compelling Interests.

The mandate and accommodation achieve the government’s goals by

making contraceptives affordable and otherwise accessible to women. As

explained above, federal law generally guarantees women contraceptive coverage

without cost sharing. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. at 8725

(discussing HRSA guidelines). Importantly, under the mandate and

accommodation, women covered by group health insurance plans generally are

required to take no additional action to obtain this contraceptive coverage. This is

because the coverage is delivered “through the existing employer-based system of

health coverage.” 78 Fed. Reg. at 39888. Thus, under the mandate, women need

not complete extra paperwork or sign up for an additional program because the

contraceptive coverage is delivered with the health insurance they already have

through their employers.

This is true even when an employer opts out of providing contraceptive

coverage by seeking an accommodation. Although objecting employers are not

obligated to provide or pay for contraceptives, the women covered by their plans

seamlessly receive contraceptive coverage from the plans’ TPAs. This system was

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carefully designed to make contraceptive coverage accessible by not requiring

women to research plans that offer contraceptive coverage, purchase separate

contraceptive coverage, or even sign up with a different entity or program. See id.

As the Supreme Court acknowledged in Hobby Lobby, the Departments designed

the accommodation so that it has “precisely zero” impact on female plan

participants and beneficiaries. 134 S. Ct. at 2760; see also id. at 2759 (explaining

the accommodation “ensur[es] that the employees of [eligible organizations] have

precisely the same access to all FDA-approved contraceptives as employees of

companies whose owners have no religious objections to providing such

coverage”). 37

Providing women with such seamless coverage should result in a lower

unintended pregnancy rate. Medical evidence reflects a causal relationship

between the accessibility of contraceptives and the unintended pregnancy rate:

“progress in reducing the rate of unintended pregnancy would be possible by

making contraceptives more available, accessible, and acceptable.” IOM Report at

104 (internal quotation marks omitted); see also id. at 109 (“[C]ost-sharing

requirements, such as deductibles and copayments, can pose barriers to care and

result in reduced use of preventative and primary care services, particularly for

37

We acknowledge that the Supreme Court in Hobby Lobby expressly declined to decide

whether the accommodation violated RFRA. Nonetheless, our analysis is consistent with the

Court’s dicta.

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low-income populations.”); Dianne Greene Foster, et al., Number of Oral

Contraceptive Pill Packages Dispensed & Subsequent Unintended Pregnancies,

Obstetrics & Gynecology, March 2011, at 566 (concluding that when receipt of

oral contraceptives was made more convenient by dispensing them annually rather

than quarterly the unintended pregnancy rate dropped by 30% and the abortion rate

dropped by 46%). 38 Because the government has demonstrated that the mandate

and accommodation increase access to contraception, we conclude that the

mandate and accommodation are effective ways to reduce the unintended

pregnancy rate. Accordingly, they serve the government’s compelling interests of

38

The government’s evidence further shows that when contraception is easily accessible,

women not only use it more often, they select more effective methods of contraception. In

research studies, “when out-of-pocket costs for contraceptives were eliminated or reduced,

women were more likely to rely on more effective long-acting contraceptive methods.” IOM

Report at 109. These methods include intrauterine devices and contraceptive implants, which are

long-lasting and have the additional advantage of not being dependent on user compliance. See

Birth Control Methods Fact Sheet, Dep’t of Health & Hum. Servs., Office on Women’s Health,

http://www.womenshealth.gov/publications/our-publications/fact-sheet/birth-control-

methods.html (July 16, 2012) (showing that implants and intrauterine devices have a failure rate

of less than 1 percent, compared to 5 percent for oral contraceptives and 11 to 16 percent for

male condoms).

These longer-acting contraceptive methods have been underutilized in the United States

compared to other developed countries where unintended pregnancy rates are lower, Jeffrey F.

Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception,

Obstetrics & Gynecology, Dec. 2012, at 1291, in large part because they pose higher up-front

costs that discourage use. See IOM Report at 108. Evidence shows that women’s use of long-

acting contraceptive methods easily can be increased by making the methods cheaper and more

readily available. In a study that provided intrauterine devices and implanted contraceptives at

no cost to study participants, researchers found a significant decrease in unintended pregnancy

and abortion rates in the study population. The study concluded that “[u]nintended pregnancies

may be reduced by providing no-cost contraception and promoting the most effective

contraceptive methods.” See Peipert, supra, at 1291.

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improving the health of women and children and assuring that women receive

health benefits that meet their needs as well as the health care provided to men

does.

Of course, a compelling interest alone is insufficient to satisfy RFRA; we

must also assess “the marginal interest in enforcing” the challenged law against the

religious adherents in question. Hobby Lobby, 134 S. Ct. at 2779. “RFRA requires

the Government to demonstrate that the compelling interest test is satisfied through

application of the challenged law ‘to the person’—the particular claimant whose

sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (quoting 42

U.S.C. § 2000bb-1(b)); see also Yoder, 406 U.S. at 221 (“Where fundamental

claims of religious freedom are at stake, however, we cannot accept such a

sweeping claim [of compelling interest]; despite its admitted validity in the

generality of cases, we must searchingly examine the interests that the State seeks

to promote . . . and the impediment to those objectives that would flow from

recognizing the claimed . . . exemption.”).

Yoder provides a good example of the application of this principle. There,

the Amish plaintiffs challenged Wisconsin’s law requiring high school attendance

until the age of 16. Yoder, 406 U.S. at 207-08. The government asserted that the

law was justified by a general interest in the virtues of universal education. Id. at

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213-14. The Supreme Court was unsatisfied with this interest as it applied to the

plaintiffs. “[T]he evidence adduced by the Amish . . . [was] persuasively to the

effect that an additional one or two years of formal high school for Amish children

in place of their long-established program of informal vocational education would

do little to serve [the government’s stated] interests.” Id. at 222 (emphasis added).

Similarly, the government’s argument in O Centro exemplifies an overly

generalized interest. The plaintiffs, a religious sect with origins in the Amazon

rainforest, challenged the Controlled Substances Act’s regulation of hoasca, a

hallucinogenic tea they used in religious ceremonies. The federal government

argued that it had “a compelling interest in the uniform application of the

Controlled Substances Act, such that no exception to the ban on use of the

hallucinogen can be made to accommodate the sect’s sincere religious practice.” O

Centro, 546 U.S. at 423. The Supreme Court dismissed this slippery slope

argument, which it said “could be invoked in response to any RFRA claim for an

exception to a generally applicable law,” because it failed to consider the limited

effect of an exception for the particular plaintiffs, and its stated need for universal

application was undermined by the existence of other exceptions. Id. at 435-36.

In contrast to Yoder and O Centro, here the government’s stated interests all

concern the law’s application to these particular plaintiffs. The government argues

that applying the accommodation procedure to the plaintiffs in these cases furthers

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its interests because the accommodation ensures that the plaintiffs’ female plan

participants and beneficiaries—who may or may not share the same religious

beliefs as their employer—have access to contraception without cost sharing or

additional administrative burdens as the ACA requires. Unlike the exception made

in Yoder for Amish children, whom the Supreme Court found had an adequate

substitute for additional formal education to refute the government’s compelling

interest, here the IOM Report’s findings of poor health outcomes related to

unintended or poorly timed pregnancies apply to the plaintiffs’ female plan

participants or beneficiaries and their children just as they do to the general

population.

Moreover, the accommodation’s requirement that the plaintiffs inform their

TPAs or HHS of their religious objection is essential to achieving the

government’s compelling interests. It ensures that a TPA is aware when it has an

obligation to provide contraceptive coverage so that the women covered by these

plans can receive coverage if they want it, without gaps in such coverage. The

notification also guarantees that the Departments will be able to identify objecting

organizations, like the plaintiffs, to make sure that the accommodation procedures

work (that is, to independently ensure that the women covered by the plaintiffs’

plans are receiving the coverage to which they are entitled). Thus, the

government’s interests are sufficiently particular to satisfy the O Centro standard.

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(c) The Exceptions to the Mandate and

Accommodation Do Not Undermine the

Government’s Compelling Interest.

The plaintiffs argue that the government’s interests in providing broad

contraceptive coverage cannot be compelling because the ACA provides

exemptions from the mandate for other types of employers—namely, those (1)

with grandfathered health plans, (2) with fewer than 50 employees, and (3) that

qualify as “religious employers.” We disagree.

First, the existence of grandfathered plans does not undermine the

government’s compelling interest in providing contraceptive coverage because

grandfathered plans are only a short-lived, transitional measure intended to ease

the burden of compliance with the ACA’s sweeping reforms. 78 Fed. Reg. at

39887 n.49 (“[T]he Affordable Care Act’s grandfathering provision is only

transitional in effect, and it is expected that a majority of plans will lose their

grandfathered status by the end of 2013.”). To be grandfathered, a plan must

continue to provide virtually the same benefits for the same percentage cost

sharing as the plan had in effect on March 23, 2010. 45 C.F.R. § 147.140(g)(1)(ii).

It becomes difficult to comply with these requirements over time. See, e.g.,

Second Am. Compl. at 23-24, No. 1:12-cv-03489, Doc. 56 (describing the Atlanta

Archdiocese’s inability to afford to maintain its grandfathered plan past January 1,

2014).

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Research by the Kaiser Family Foundation demonstrates that the percentage

of workers covered by grandfathered plans has rapidly declined: 26 percent in

2014, down from 36 percent in 2013, 48 percent in 2012, and 56 percent in 2011.

Kaiser Family Found. & Health Research & Ed. Trust, Employer Health Benefits

2015 Annual Survey at 218 (Sept. 22, 2015). 39 In addition, some employees

covered by grandfathered plans may in fact be receiving contraceptive benefits

without cost sharing because, though not required to do so, their plans may include

such a benefit.

As an additional consideration, we do not wish to penalize the government

for phasing in the ACA’s requirements to help businesses adjust to a new health

care regulatory landscape. Cf. Heckler v. Mathews, 465 U.S. 728, 746 (1984)

(“We have recognized, in a number of contexts, the legitimacy of protecting

reasonable reliance on prior law even when that requires allowing an

unconstitutional statute to remain in effect for a limited period of time. . . . The

protection of reasonable reliance interests is . . . a legitimate governmental

objective.”). Accordingly, even if the mandate and accommodation are phased in

39

We acknowledge that the Kaiser Family Foundation’s 2015 data shows that 25% of

covered workers are enrolled in a grandfathered plan, which is not much less than the 26% in

2014. But the Foundation reported that many employers were confused and unsure about

whether their plans remained grandfathered, suggesting that employers may have inaccurately

reported that they had grandfathered plans. Kaiser Family Found., supra, at 214.

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over time, the gradual implementation is insufficient to undermine the

government’s compelling interest.

Second, the ACA’s treatment of employers with 50 or fewer employees as

exempt from the “employer mandate” and therefore not required to provide

employees with health insurance at all, see 26 U.S.C. § 4980H(a)(c)(2)(A), does

not undercut the government’s compelling interests. If, on the one hand, smaller

employers do not provide insurance coverage, then their employees must purchase

health plans on the health insurance exchanges or face tax penalties. See id.

§ 5000A(a), (b)(1). And plans purchased on the exchanges will include

contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). If, on the other hand,

smaller employers choose to provide health insurance, then their plans are subject

to the contraceptive mandate. See id. The employees of small businesses therefore

will receive contraceptive coverage regardless of whether their employers are

exempt from providing health insurance. This exemption reflects a practical

recognition that small businesses have different financial realities from larger

businesses. It in no way undermines the government’s interest in providing

contraceptive coverage without cost sharing because small businesses’ employees

end up with health plans subject to the contraceptive mandate whether the

employers provide health insurance or not.

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Third, the exemption from the contraceptive mandate for religious

employers does not weaken the government’s stated interests. Under the HRSA

guidelines, the contraceptive mandate does not apply to a group health plan run by

a religious employer, defined by the regulations as “an organization that is

organized and operates as a nonprofit entity and is referred to in section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”

45 C.F.R. § 147.131(a). In finalizing the regulations, the Departments declined to

extend the exemption to other organizations that have religious objections to the

mandate because:

Houses of worship and their integrated auxiliaries that object to

contraceptive coverage on religious grounds are more likely than

other employers to employ people of the same faith who share the

same objection, and who would therefore be less likely than other

people to use contraceptive services even if such services were

covered under their plan.

78 Fed. Reg. at 39874.

The exemption for religious employers attempts to balance the need for

contraceptive coverage with our nation’s longstanding history of deferring to a

house of worship’s decisions about its internal affairs. See 76 Fed. Reg. at 46623

(“[T]he Departments seek to provide for a religious accommodation that respects

the unique relationship between a house of worship and its employees in

ministerial positions.”); see also Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC, 132 S. Ct. 694, 704-06 (2012) (describing history of non-

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interference with internal affairs of houses of worship). The government

undoubtedly has a compelling interest in respecting the values of religious

employers and their employees, and pursuing that interest does not undermine the

government’s equally compelling interest in improving women’s and the public’s

health by making contraceptives easier to obtain. Especially with regard to

sweeping legislation like the ACA, the government is often faced with competing

compelling interests. Courts may allow the government to balance those interests

without undermining any individual compelling interest. See Hobby Lobby,

134 S. Ct. at 2780 (“Even a compelling interest may be outweighed in some

circumstances by another even weightier consideration.”).

We also reject the plaintiffs’ argument that the Departments’ distinction

between houses of worship (which are exempted from the mandate) and other

organizations with religious affiliation (which must seek an accommodation) is

illogical. Although it may not universally hold true, 40 it is a common-sense notion

that a church’s employees likely share more beliefs with the church than do the

employees of, for example, a school linked to that church, and therefore the

employees of a church that objects to contraception are less likely to use

contraceptive coverage even if it is available. See 78 Fed. Reg. at 39874. Thus,

40

EWTN in particular argues that the Departments’ distinction between houses of

worship and other religious organizations is illogical and does not hold for EWTN because, like

employees of “religious employers,” its employees share its religious convictions.

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the Departments distinguished between houses of worship and other religious

groups using the readily available and well-established IRS tax status test. This

test is predictable for affected organizations and easy for the Departments to

implement. See United States v. Lee, 455 U.S. 252, 260-61 (1982) (noting it was

reasonable for Congress to exempt self-employed Amish from Social Security

taxes because the exemption for “the self-employed provided for a narrow category

which was readily identifiable . . . [and] distinguishable from the generality of

wage earners employed by others”). We do not think that the Departments’

decision to exempt houses of worship based on a bright-line test while

accommodating other religious organizations undercuts the government’s

compelling interests in enforcing the contraceptive mandate.

In sum, the mandate and accommodation further the government’s

compelling interests by ensuring that women have contraceptive coverage without

cost sharing or additional administrative hurdles. Additionally, by requiring

organizations that opt out of the mandate to identify themselves, the government

ensures that these organizations’ health plan participants and beneficiaries can

receive the coverage seamlessly through other channels. Although the government

has attempted to accommodate religious freedom as well as the needs of

businesses, it has not done so in a way that undermines its goal of ensuring access

to contraception.

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(ii) The Mandate and Accommodation Are the Least

Restrictive Means of Furthering the Government’s

Compelling Interests.

As a final step, we must determine whether the mandate and accommodation

are “the least restrictive means of furthering” the government’s compelling

interests. 42 U.S.C. § 2000bb-1(b). This test is “exceptionally demanding.”

Hobby Lobby, 134 S. Ct. at 2780. The government must show “that it lacks other

means of achieving its desired goal without imposing a substantial burden on the

exercise of religion by the [plaintiffs].” Id. When a less restrictive alternative

serves the government’s compelling interest “equally well,” the government must

use that alternative. Id. at 2782; see id. at 2786 (Kennedy, J. concurring)

(considering whether alternative “equally furthers the Government’s interest”).

In determining whether potential alternatives to the mandate and

accommodation equally further the government’s interests, we must consider both

the cost to the government and the burden the alternatives impose on the affected

women. See id. at 2760 (majority opinion) (“[W]e certainly do not hold or suggest

that RFRA demands accommodation of a for-profit corporation’s religious beliefs

no matter the impact that accommodation may have on thousands of women

employed by Hobby Lobby. The effect of the HHS-created accommodation on the

women employed by Hobby Lobby and the other companies involved in these

cases would be precisely zero.” (emphasis added) (alteration, footnote, citation,

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and internal quotation marks omitted)); id. at 2760 (clarifying that the Court did

not hold that “corporations have free rein to take steps that impose disadvantages

on others or that require the general public to pick up the tab” (alteration and

internal quotation marks omitted)). Because there are no less restrictive means

available that serve the government’s interests equally well, we hold that the

mandate and accommodation survive strict scrutiny under RFRA.

Although the plaintiffs and the dissent suggest several potential less

restrictive alternatives to the mandate and accommodation, their proposals fail to

achieve the government’s interests as effectively. Indeed, their proposals impose

burdens on women that would make contraceptives less accessible than they

currently are. Because these proposals cannot be expected to reduce the rate of

unintended pregnancies and thereby improve the health of women and children as

effectively as the mandate and accommodation, they do not qualify as less

restrictive alternatives under RFRA.

Previously, the Supreme Court and a member of this Court suggested that a

less restrictive alternative would be to allow eligible organizations to notify HHS

of their opt out, instead of having to provide Form 700 to their plan providers or

TPAs. See Wheaton Coll., 134 S. Ct. at 2807; Eternal Word Television Network,

756 F.3d at 1349 (William Pryor, J., concurring) (“The United States, for example,

could require the Network to provide a written notification of its religious

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objection to the Department of Health and Human Services, instead of requiring

the Network to submit Form 700—an instrument under which the health insurance

plan is operated—to the third-party administrator.”). The Departments have

responded to and addressed this concern by revising the accommodation

procedures to allow eligible organizations notify HHS directly of their desire to opt

out of the contraceptive mandate. 79 Fed. Reg. at 51094-95. With that potential

alternative incorporated into the regulatory scheme, we turn to the alternatives

proposed by the plaintiffs and the dissent.

(a) The Plaintiffs’ Proposals

The plaintiffs propose two less restrictive alternatives. First, they suggest

that the government could pay directly for all contraceptive coverage, in effect a

single-payer system for contraceptives only, 41 either by creating a new government

program or expanding an existing one. 42 Either way Congress would need to pass

legislation that would fundamentally change how the majority of American women

41

In a single-payer system, the government—as opposed to employers, health insurers, or

patients—pays for healthcare services. See Notre Dame II, 786 F.3d at 615; Single-Payer,

Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/single-payer (last

visited Feb. 12, 2016). Although the plaintiffs never call their proposal a “single-payer” system

for contraceptives, the label applies because they propose a system in which the government

would be the sole payer for contraceptives and related services. It is important to note that all

other health care would continue to be provided through our existing system.

42

The plaintiffs suggest, for example, that Congress could expand Title X, which

currently benefits only low-income families; patients whose income exceeds 250 percent of the

poverty level must pay for any services they receive through Title X programs. See 42 U.S.C.

§ 300a-4(c); 42 C.F.R. § 59.5(a)(8).

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receive their healthcare coverage for contraception. 43 See Jessica C. Smith & Carla

Medalia, U.S. Census Bureau, Health Insurance Coverage in the U.S.: 2014 at 3

(2015) (55% of Americans had insurance coverage provided by an employer in

2014). Among other things, adopting a single-payer system for contraception

would require Congress to squeeze insurance companies out of an entire segment

of the health insurance business.44 Second, the plaintiffs assert that the

government could provide tax credits to reimburse women for purchasing

contraceptive coverage. 45 Under either the single-payer or tax credit proposals, all

coverage for contraception and related services would operate outside the existing,

largely employer-based, insurance system.

43

In Hobby Lobby, the government argued that RFRA does not permit the court to

consider proposals that would require the government to create entirely new programs as less

restrictive alternatives. The Court rejected this argument, explaining “we see nothing in RFRA

that supports this argument.” Hobby Lobby, 134 S. Ct. at 2781. Accordingly, we consider this

proposal even though it would require substantial congressional action to expand significantly an

existing program or create a new one.

44

We may, of course, consider the burdens that a proposed alternative places on

nonbeneficiaries, such as insurance companies. See Cutter v. Wilkinson, 544 U.S. 709, 720-722

(2005) (“[A]pplying RLUIPA, courts must take adequate account of the burdens a requested

accommodation may impose on nonbeneficiaries. . . . Our decisions indicate that an

accommodation must be measured so that it does not override other significant interests.”).

45

The plaintiffs suggest the government could require women to purchase separate

contraceptive coverage on the healthcare exchanges and then offer tax credits to offset the cost of

purchasing the coverage. This proposal would require Congress to amend the ACA because the

exchanges are statutorily restricted to selling only full health insurance policies. See 42 U.S.C.

§§ 18021(a)(1)(B), 18022(a), (b).

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Most importantly, these proposals are not less restrictive alternatives

because they would not serve the government’s interests “equally well.” 46 Hobby

Lobby, 134 S. Ct. at 2782. As the Departments explain, these proposals would

cause all women who have existing contraceptive coverage through group health

insurance plans to lose such coverage, forcing them instead to “take steps to learn

about, and to sign up for, a new health benefit.” 78 Fed. Reg. at 39888. Indeed,

under these proposals, women would have one employer-provided health insurance

plan covering healthcare other than contraception. Then, they would have to take

additional, separate steps to secure contraceptives or contraceptive coverage.

Under a single-payer system for contraceptives, they would have to research the

federal entitlement for contraceptives and register for the program. Under a tax-

credit system, they would have to research plans offering separate contraceptive

coverage, select a plan, purchase coverage, and later file for a tax credit as part of

their individual tax returns. 47 The mandate and accommodation present an easier,

46

We acknowledge dicta in Hobby Lobby suggesting as a less restrictive alternative that

the government pay directly for contraception; however, the Supreme Court did not hold that

such a program was a less restrictive alternative. 134 S. Ct. at 2871-82 (“[W]e need not rely on

the option of a new, government-funded program in order to conclude that the HHS regulations

fail the least-restrictive-means test.”).

47

The tax-credit proposal is particularly problematic because it forces women to pay up

front for contraceptives in exchange for tax credits later. But many women simply would not be

able to afford to wait a year for a refund from the government in the form of a tax credit and, as

the government’s evidence shows, would instead have to forgo using contraceptives. See IOM

Report at 109 (recognizing that “cost-sharing requirements, such as deductibles and copayments,

can pose barriers to care and result in reduced use of preventive . . . services”); see also supra

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simpler, and more certain path for women by ensuring that, by obtaining health

insurance, they also secure contraceptive coverage, even when their employers opt

out.

Because plaintiffs’ proposals impose greater barriers to contraceptive access

than exist under the mandate and accommodation, their proposals likely will lead

to lower rates of contraceptive usage (along with use of less effective forms of

contraception), meaning these proposals will be less effective at preventing

unintended pregnancies and concomitant health consequences. 48 See IOM Report

at 104-09; Foster, supra, at 566 (reflecting that when obtaining contraceptives

became less convenient, the rate of unintended pregnancy increased); see also

78 Fed. Reg. at 39888 (recognizing that these proposals would be “less effective

than the employer-based system of health coverage in advancing the government’s

compelling interests”).

Plaintiffs’ proposals would make contraception less accessible not only to

women who currently receive contraceptive coverage through a group insurance

note 38. In contrast, the mandate and accommodation require women to pay nothing upfront for

contraceptives. Accordingly, contraceptives are significantly more available to women under the

mandate and accommodation than they would be under the tax-credit proposal.

48

The two other circuit courts to address this issue have rejected similar alternatives for

the same reason. See Notre Dame II, 786 F.3d at 616-17 (rejecting similar proposed alternatives

because they “would impede the receipt of [contraceptive] benefits”); Priests for Life I, 772 F.3d

at 265 (holding that proposed alternatives “would not serve the government’s compelling interest

with anywhere near the efficacy of the challenged accommodation and would instead deter

women from accessing contraception”).

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plan, but also to women who currently purchase health insurance through the

exchanges, including women who work for an employer with fewer than 50 full-

time employees. Under the current framework, these women must research and

compare potential health insurance plans sold on the exchanges and then purchase

and sign up for a plan. As a result of their efforts, they receive health insurance

that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Under the

plaintiffs’ proposals, these women would still have to procure health insurance

from the exchanges. But then they would have to take the additional steps

described above to obtain coverage for contraceptives. In other words, women

who currently purchase insurance through the exchanges would also face greater

burdens accessing contraceptives under a single-payer system. 49

49

It is unclear whether our dissenting colleague advocates as a less restrictive alternative

replacing our insurance-based system with a single-payer system for contraceptive coverage. On

the one hand, the dissent never states that a single-payer system would be a less restrictive

alternative, instead proposing that the ACA and ERISA need only a “slight[] tweak,” not the

jettisoning of our insurance-based system for contraceptives that a single-payer system would

entail. Dissent at 137. On the one other hand, the dissent argues that the government should

“provid[e] for contraceptive coverage directly without the accommodation’s administrative

rigmarole” so that the government could “offer cost-free access to each and every woman in the

United States.” Id. at 134. This sounds to us like a single-payer system.

Indeed, the dissent suggests that a single-payer system would be as effective or more

effective than the mandate and accommodation at making contraceptives accessible to women.

Because under either system women pay nothing for contraceptives, to compare women’s access

to contraceptives under the two systems, we must focus on the administrative burdens that

women face under either system.

We conclude that, on the whole, women face fewer barriers to obtaining contraceptives

under the mandate and accommodation than they would under a single-payer system. Most

significantly, most women covered by group health insurance plans and all who purchase

insurance on the exchanges seamlessly receive coverage under the mandate and accommodation.

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After careful consideration, we conclude that the government has shown that

contraceptives would be less accessible—and used less frequently or effectively—

under the plaintiffs’ proposals then they are under the mandate and

Nonetheless, the dissent asserts that a single-payer system is a more effective way to improve

access to contraceptives because three categories of women whose employers are exempt from

the contraceptive mandate—(1) women employed by small businesses, (2) women covered by

grandfathered plans, and (3) women employed by churches or church-affiliated organizations—

would have greater access to contraceptives under such a system. See id. at 50. After

considering these three categories, we remain convinced that a single-payer system would be less

effective than the mandate and accommodation.

First, the dissent suggests that women whose employers have 50 or fewer full-time

employees would receive better access to contraceptives under a single-payer system. But, as we

explained above, these women receive contraceptive coverage under the mandate and

accommodation regardless of whether their employers elect to provide health insurance coverage

or they purchase a plan on the exchanges. See supra Part III.A.2.c.(i).(c). Given that these

women currently have seamless access to contraceptives, we fail to see how this group supports

the dissent’s argument.

Second, the dissent asserts that women whose health plans have a grandfathered

exemption would have better access to contraceptives under a single-payer system. But the

dissent overlooks that the grandfathered exemption is a temporary measure, meaning the number

of women covered by plans subject to the exemption has rapidly declined and should continue to

decline over time because it becomes more expensive for plans to maintain their grandfathered

status. See 45 C.F.R. § 147.140(g)(1) (requiring grandfathered plans to provide virtually the

same benefits for the same percentage cost sharing that the plan had in effect on March 2010).

We cannot say that a single-payer system serves the government’s interest as effectively or more

effectively simply because in the short term a subset of women may have easier access to

contraceptives under a single-payer system.

Third, the dissent argues that women employed by churches and church-affiliated

organizations would have easier access to contraceptives under a single-payer system. Even if

that is true for this relatively small group of women, the Departments have explained that these

employees are likely to share their employer’s religious objection to contraception, meaning they

are “less likely than other people to use contraceptive services even if such services were

covered under the plan.” 78 Fed. Reg. at 39874. All together, we cannot say that a single-payer

system serves the government’s interest as effectively as the mandate and accommodation when

we consider that a single-payer system would impose greater barriers to accessing contraceptives

for most women who purchase health insurance from an employer and all women who purchase

plans on the exchanges. What’s more, the balance tips even further in favor of the mandate and

accommodation when we consider the impact of imposing on non-beneficiaries a single-payer

system for an entire segment of preventative care. See Cutter, 544 U.S. at 720.

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accommodation. Given the government’s compelling interest in minimizing the

barriers women face in accessing contraceptives so that they will use

contraceptives to lower the rate of unintended pregnancies, we conclude that the

plaintiffs’ proposals would not serve the government’s interest equally as well as

the mandate and accommodation. Thus, they fail to qualify as less restrictive

alternatives.

The dissent criticizes our position as giving the Departments a “free pass” on

the least restrictive means requirement. Dissent at 139. Our dissenting colleague

takes our analysis to mean that the government can defeat a potential alternative

merely by showing that the alternative would take away a benefit—any benefit—

that the government’s existing framework provides to “third parties” (here, the

women who are the intended beneficiaries of the mandate and accommodation).

Id. at 138. The dissent overstates our position. We are not saying that the

government can always overcome strict scrutiny by showing that proposed

alternatives would take away a benefit that the current framework provides.

Rather, on the facts and record of this case—including the evidence that when

women face greater burdens (whether financial or administrative) in accessing

contraceptives or contraceptive coverage, they are less likely to use

contraceptives—we must conclude that plaintiffs’ alternatives, which make

contraceptives less accessible, would be significantly less effective than the

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mandate and accommodation at reducing the rate of unintended pregnancies and

thus would thwart the government’s interests. 50

(b) The Dissent’s Proposal

The dissent suggests that Congress could “slightly tweak” the ACA and

ERISA to “eliminate the need for eligible organizations to affirmatively designate

the third-party administrators of their health plans.” Dissent at 137. We

understand the dissent’s proposal to be that Congress should pass legislation and

the Departments should enact regulations that would designate the TPA for a self-

insured eligible organization as plan administrator for purposes of contraceptive

coverage without requiring the eligible organization to communicate its religious

objection to anyone.

The dissent’s proposal fails to serve the government’s interest equally as

well as the accommodation because the alternative would make contraceptives less

accessible to women covered by eligible organizations’ plans than would the

accommodation. The dissent fails to explain—and we cannot imagine—how a

TPA would know when an employer has a religious objection to providing

contraceptive coverage under the proposal and thus that the TPA is required to

50

The Eighth Circuit’s proposal that “the government could pay for the distribution of

contraceptives at community health centers, public clinics, and hospitals with income-based

support” likewise would impose additional administrative burdens on women and thus in a

similar way fails to satisfy the government’s interests. Sharpe Holdings, 801 F.3d at 945.

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provide the coverage in the employer’s stead if the employer is not required to

notify anyone. Like the TPAs, the government must also be able to identify

women whose employers object on religious grounds to providing contraceptive

coverage. Otherwise, the government will be unable to ensure that the participants

and beneficiaries of the abstaining organization’s health insurance plan receive the

coverage the law mandates. Without an effective way to identify any gaps, the

government would be hamstrung in its ability to accommodate employers’

sincerely held religious beliefs while also pursuing the interests that Congress

intended to achieve in passing the Women’s Health Amendment. 51

51

The Eighth Circuit suggested as a less restrictive alternative that the Departments

revise the regulations governing the accommodation to remove the requirement that when

notifying HHS of its religious objection, an eligible organization must identify its TPA and

provide the TPA’s contact information. Sharpe Holdings, 801 F.3d at 944. The Eighth Circuit

concluded that this alternative would be “less onerous” than the current regulations yet “permit[]

the government to further its interests.” Id. The Eighth Circuit relied on the fact that when the

Supreme Court in Wheaton College created an accommodation, the Court required the college

only to notify HHS that it had an objection to providing coverage for contraceptive services, and

not to identify its TPA. Id.

We disagree with the Eighth Circuit that this alternative would serve HHS’s interests

equally well. As the Departments explained, the information required under the regulations is

“necessary for the Departments to determine which entities are covered by the accommodation,

to administer the accommodation, and to implement the policies in the . . . final regulations.”

79 Fed. Reg. at 51095. The Eighth Circuit has not explained why this is not so. Although the

Supreme Court in Wheaton College did not require the college to identify its TPA to HHS to

receive an accommodation, the information was unnecessary because HHS already knew the

identity of the college’s TPA. See Wheaton College, 134 S. Ct. at 2815 (Sotomayor, J.,

dissenting) (“HHS is aware of Wheaton’s third-party administrator in this case.”). Thus,

Wheaton College does not suggest that HHS could administer the mandate and accommodation

in other cases without requiring an eligible organization to identify its TPA.

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The dissent’s proposal would create gaps or delays in contraceptive

coverage for plan participants and beneficiaries of eligible organizations that refuse

to provide contraceptive coverage or tell anyone of their objection. Until the

insured, the TPA, or HHS learned of the silent omission of contraceptive coverage,

these women would be denied the contraceptive coverage to which they are

irrefutably entitled. During this period, such eligible organizations would, in

effect, be imposing their religious beliefs on women who wish to take advantage of

their rights under federal law. These gaps in contraceptive coverage would

frustrate the government’s interests. Because the dissent’s proposal substantially

burdens religious exercise and fails to meet the government’s compelling interests,

it cannot constitute a less restrictive alternative. 52

52

We pause to note that if we assume that the dissent’s substantial burden analysis is

correct—meaning the only objective inquiry for determining whether there is a substantial

burden is the magnitude of the penalty, see Dissent at 116—then the dissent’s proposal would

substantially burden the plaintiffs’ religious exercise. Presumably the dissent’s position is that

the proposal presents a satisfactory alternative because it requires no “affirmative participation”

by the objecting organization. Id. at 139. In fact, though, a TPA’s obligation to provide

contraceptive coverage to a specific plan participant or beneficiary would remain tied to and—in

some limited way—“triggered” by actions taken by the organization. An eligible organization is

required to take two actions before its TPA becomes obligated to provide contraceptive coverage

to a specific plan participant or beneficiary: the eligible organization must (1) contract with a

specific TPA to provide administrative services for its plan and (2) notify the TPA of the

individuals covered by its plan. Unless an eligible organization hired a specific TPA and

provided a list of its insureds, those insureds would never receive contraceptive coverage from

the TPA, even under the dissent’s proposal. See Notre Dame II, 786 F.3d at 617 (explaining that

under a similar proposal when a university hired an unemployed person who “by virtue of

becoming employed by [the organization], obtained contraception coverage for the first time,”

the university’s acts would “‘trigger[]’ the new employee’s access to contraception”).

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We hold that, even if the accommodation substantially burdens the

plaintiffs’ religious exercise, it does not violate RFRA because it is the least

restrictive means of furthering the government’s compelling interests in the

contraceptive mandate.

B. EWTN’S Free Exercise Claims

Plaintiff-appellant EWTN additionally claims that the contraceptive mandate

violates the Free Exercise Clause of the First Amendment. The Supreme Court’s

Smith decision continues to apply to Free Exercise claims outside of the RFRA

context; thus, neutral and generally applicable laws need not be justified by any

compelling interest even if those laws incidentally burden religious exercise.

Smith, 494 U.S. at 885. A law is neutral unless “the object of a law is to infringe

upon or restrict practices because of their religious motivation.” Lukumi Babalu

The plaintiffs’ religious objections to taking acts that “trigger[]” contraceptive coverage,

“facilitat[e]” access to contraceptives, or render them “complicit” in a scheme that provides

access to contraceptives apply with equal force to the dissent’s proposal. See EWTN Reply Br.

at 5, 10-11; Catholic Charities and CENGI Appellee Br. at 10, 13, 20. Indeed, Catholic Charities

and CENGI alleged in their complaint that their “religious beliefs prohibit them from contracting

with [a] . . . third-party administrator that will, as a direct result, procure or provide the

objectionable coverage to [their] employees.” Second Am. Compl. at 49, No. 1:12-cv-03489-

WSD, Doc. 56. We acknowledge that the dissent’s proposal does not require an eligible

organization to tell HHS or its TPA that it has a religious objection to providing contraceptive

coverage. But the plaintiffs do not claim that the government imposes a substantial burden by

forcing them to state that they have a religious objection. Rather, they claim a substantial burden

because, they assert, their objection would cause their TPAs to provide contraceptive coverage.

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Aye, 508 U.S. at 533. And a law is generally applicable if it does not “in a

selective manner impose burdens only on conduct motivated by religious belief.”

Id. at 543. “A law failing to satisfy these requirements must be justified by a

compelling governmental interest and must be narrowly tailored to advance that

interest.” Id. at 531-32. But if a law indeed is neutral and generally applicable,

“then rational basis scrutiny should be applied, requiring that the plaintiff show

that there is not a legitimate government interest or that the law is not rationally

related to protect that interest.” GeorgiaCarry.Org, Inc v. Georgia, 687 F.3d 1244,

1255 n.21 (11th Cir. 2012).

Congress included the contraceptive mandate in the ACA to improve

women’s health and public health generally. There is no evidence whatsoever that

the mandate was enacted in an attempt to restrict religious exercise. To the

contrary, in implementing the contraceptive mandate the Departments have

attempted to accommodate religious interests by granting exceptions for religious

employers and those organizations with religious objections to providing

contraceptive coverage. EWTN nonetheless argues that the mandate is non-neutral

because the exemption and accommodation “discriminate[] among religious

objectors, creating a three-tiered system.” EWTN Appellant Br. at 54. But the

regulations do not discriminate between religious denominations or infringe upon

or restrict conduct because of its religious motivation. Rather, the procedures

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distinguish among organizations on the basis of their tax status. Thus EWTN has

failed to show that the mandate is non-neutral.

EWTN also argues that the mandate is not generally applicable because the

ACA carves out small employers and grandfathered plans. For the same reasons

we rejected this argument as it pertains to the plaintiffs’ RFRA claim, we reject it

here. Just as these exceptions do not undermine the government’s compelling

interests justifying the contraceptive mandate, they do not prevent the mandate

from being generally applicable as defined by Lukumi Babalu Aye. The exceptions

for small businesses and grandfathered plans apply equally to religious employers

and non-religious employers. The exceptions in no way “impose burdens only on

conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543.

Because the contraceptive mandate is neutral and generally applicable, to

invalidate it the plaintiff must show that is it not rationally related to a legitimate

government interest. See GeorgiaCarry.Org, 687 F.3d at 1255 n.21. EWTN

cannot make such a showing. We have already concluded that the government has

a compelling (and therefore legitimate) interest in ensuring women have access to

contraceptives without cost sharing. See supra Part III.A.2.c.(i). The mandate is

clearly rationally related to that interest and thus passes muster under the Free

Exercise Clause.

C. EWTN’S Establishment Clause Claim

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EWTN next argues that the contraceptive mandate violates the

Establishment Clause by discriminating among religious organizations.

Specifically, EWTN objects to the way the exemption and accommodation

distinguish between houses of worship and other types of religious organizations.

As an initial matter, the Supreme Court “has long recognized that the government

may (and sometimes must) accommodate religious practices and that it may do so

without violating the Establishment Clause.” Hobbie v. Unemployment Appeals

Comm’n of Fla., 480 U.S. 136, 144-145 (1987); see also Wallace v. Jaffree, 472

U.S. 38, 83 (1985) (O’Connor, J., concurring) (“It is disingenuous to look for a

purely secular purpose when the manifest objective of a statute is to facilitate the

free exercise of religion by lifting a government-imposed burden. Instead, the

Court should simply acknowledge that the religious purpose of such a statute is

legitimated by the Free Exercise Clause.”).

Like its claim based on the Free Exercise Clause, EWTN’s Establishment

Clause claim fails because the accommodation does not distinguish among

religious groups on the basis of denomination, but rather on non-denominational

attributes of an objecting organization. The accommodation relies on tax status,

which is a permissible way to distinguish between organizations for the purpose of

drafting a religious exemption. “[R]eligious employers, defined as in the cited

regulation, have long enjoyed advantages (notably tax advantages) over other

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entities, without these advantages being thought to violate the establishment

clause.” Geneva Coll., 778 F.3d at 443 (alteration in original and internal

quotation marks omitted); see also Walz v. Tax Comm’n of N.Y., 397 U.S. 664,

666, 672-73 (1970) (upholding a tax exemption on social welfare services that

churches performed and emphasizing that “[t]he limits of permissible state

accommodation to religion are by no means co-extensive with the noninterference

mandated by the Free Exercise Clause.”). We therefore reject EWTN’s

Establishment Clause challenge.

D. EWTN’S Free Speech Claim

Lastly, EWTN contends that the contraceptive mandate violates the Free

Speech Clause by compelling the organization to speak in order to avail itself of

the accommodation. 53 “[T]he right of freedom of thought protected by the First

Amendment against state action includes both the right to speak freely and the

right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714

(1977). In Wooley, the plaintiff objected to the slogan on New Hampshire’s

license plate: “Live Free or Die.” Id. at 707-08. He argued that by criminalizing

his efforts to cover up the slogan, the government forced him to express a message

contrary to his beliefs. The Supreme Court agreed that the license plate was forced

53

EWTN’s Free Speech claim that the regulations compel silence is moot because the

Department removed the non-interference provisions from the regulations in 2014. 79 Fed. Reg.

at 51095.

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speech. The Court then applied United States v. O’Brien, 391 U.S. 367 (1968), to

hold that the government’s stated interest in identifying passenger cars was not

sufficiently compelling because passenger cars could be identified in other ways.

Id. at 715-17.

Assuming, arguendo, that the act of filling out Form 700 or notifying HHS

implicates the Free Speech Clause, this Court must ask whether the government’s

“countervailing interest is sufficiently compelling to justify” the forced speech. Id.

at 716. Our disposition of the plaintiffs’ RFRA claims decides the issue. Because

the government has a compelling interest in ensuring that women have access to

contraceptive care without additional financial or administrative burden, it may

force the plaintiffs to speak simply to opt out of the mandate.

IV. CONCLUSION

We hold that the accommodation for the contraceptive mandate does not

violate RFRA because it does not substantially burden the plaintiffs’ religious

exercise and because the government’s regulatory scheme is the least restrictive

means of furthering its compelling interests. The regulations

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